^^r\(ot-ei    ^^^^    /  ^7. 


-r 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


CASES 


ON 


LEGAL   LIABILITY 


BY 

JOSEPH  HENRY  BEALE 

ROYAIiL  PROFESSOR  OF   LAW   IN   HARVARD   UNIVERSITY 


SECOND   EDITION 


CAMBRIDGE 
HARVARD  UNIVERSITY  PRESS 

1920 


Copyright,  19H,  1915,  1920, 
By  Joseph  Henry  Beale 


1 H  X<^ 


THE   UNIVERSITY   PRESS,    CAMBRIDGE,    U.  S.  A. 


o 

»v4 


TO 
JEREMIAH  SMITH 


f.y  .f  > 


o.c> 


PREFACE. 


The  subject  of  the  present  collection  is  that  body  of  legal  prin- 
ciples which  determines  whether  one  may  be  charged  with  the 
consequences  of  his  act.  Not  all  the  requisites  of  ultimate 
liability  are  here  considered;  the  element  of  blame  is  not  treated. 
It  is  left  for  a  more  particular  study  of  the  law  of  Torts  to  de- 
termine what  degree  of  intention,  malice  or  negligence  must  exist 
before  one  may  be  forced  to  make  compensation  for  a  wrong; 
and  for  a  study  of  Criminal  Law  to  determine  how  far  a  guilty 
mind  is  requisite  before  punishment  can  be  inflicted.  The  topics 
here  considered  are  those  fundamental  ones  which  are  a  common 
element  of  torts  and  crimes;  and  the  object  of  this  collection  is  to 
prevent  that  duplication  of  effort  which  has  heretofore  existed 
through  the  attempt  to  include  instruction  in  these  topics  in  courses 
on  Torts  and  on  Criminal  Law. 

The  editor  can  claim  little  credit  for  the  selection  of  the  cases 
here  collected.  ]Most  of  the  civil  cases  on  Causation  have  been 
found  in  Judge  Smith's  Cases  on  Torts,  and  in  the  notes  to  his 
illuminating  articles  on  Legal  Cause  (Harvard  Law  Review,  vol. 
XXV,  pp.  103,  223,  303).  Most  of  the  civil  cases  on  Permitted  Acts 
have  been  found  in  the  text  and  notes  of  Ames's  Cases  on  Torts. 
Most  of  the  criminal  cases  have  been  taken  from  the  second  edi- 
tion of  the  present  editor's  Cases  on  Criminal  Law. 

J.  H.  BEALE. 
Cambridge,  December  1,  1914. 


TABLE  OF  CONTENTS. 


Page 

Table  of  Cases ix 

Chapter      I.     Law 1 

Chapter     II.  Liability  Based  upon  Act  : 

Section  1.     Nature  of  an  Act 38 

Section  2.     Omission  as  an  Act 44 

Section  3.     Causation  of  Injurj' 65 

Section  4.     Remote  Consequences 70 

Chapter  III.  Liability  Based  on  Proximate  Causation  : 

Section  1.     No  Intervening  Force 78 

Section  2.      Intervening  Force  Caused  by  First  Force 103 

Section  3.     Intervening  Force  Risked  as  Result  of  First  Force 158 

Section  4.     Cases  for  Analysis ■ 228 

Chapter   IV.  •  Liability  Irrespective  of  Proximate  Causation  : 

Section  1.     Respondeat  Superior 332 

Section  2.     Liability  for  Animals 349 

Sections.     The  "Civil  Damage"  Act 359 

Section  4.     Workmen's  Compensation  Acts 377 

Chapter     V.  Permitted  Acts  : 

Section  1.     Duty  to  Act 414 

Section  2.     Authority  to  Act 433 

Section  3.     Privilege  to  Act 501 

Section  4.     Protection  from  Consequences  of  Permitted  Acts 622 

Section  5.     Action  in  Pursuance  of  Permission 643 

Section  6.     Action  under  Mistake  as  to  Permission 649 

Chapter   VI.  Measure  of  Compensation  : 

Section  1.     Entire  Damages 664 

Section  2.     Assessment  of  Damage 675 

Section  3.     Certainty 711 

Section  4.     Elements  of  Loss 765 

Section  5.     Interest 841 

Section  6.     Liquidated  Damages 850 

Section  7.     Exemplary  Damages 864 


TABLE  OF  CASES. 


Page 

Acres  v.  United  States  553 

Aldworth  v.  Lynn  670 

Allen  V.  Crofoot  648 

Allison  V.  Chandler  716 

Anderson  v.  State  59 

Andrews  v.  Kinsel  207 
Anon.                                     38,  531,  571 

Armory  v.  Delamirie  822 

Armstrong  v.  Montgomery  Ry.  79 

Arp  V.  State  514 

Atchison  T.  &  S.  F.  Ry.  f.  Parry  159 

Am-ora  Citv  v.  West  849 

Axtell's  Case  425 

Bailey  v.  People  584 
Bakker  v.  Welsh  499 
Balmain  N.  F.  Co.  v.  Robertson  634 
Baltimore  &  P.  R.  R.  v.  Fifth  Bap- 
tist Church  678 
Barfoot  v.  Reynolds  561 
Barker  v.  Lewis  S.  &  T.  Co.  709 
Beale  v.  Boston  696 
Beard  v.  United  States  549 
Beattie  v.  State  61 
Beatty  v.  Gillbanks  233 
Bell  V.  Rocheford  180 
Bellino  v.  Columbus  C.  Co.  304 
Benedict  P.  Co.  v.  Atlantic  C.  L. 

R.  R.  321 

Bentley  v.  FLsher  L.  &  M.  Co.  283 

Bernhard  v.  Rochester  G.  L  Co.  841 

Binford  )'.  Johnston  187 

Blake  v.  Head  377 

Blankard  v.  Galdy  11 

Bloom  V.  Frankhn  L.  &  I.  Co.  150 

Boomer  v.  Wilbur  339 

Bowman  v.  Neely  848 

Bradford  v.  Cunard  S.  S.  Co.  725 

Bradley?;.  Chicago  M.&S.  P.  Ry.  772 

V.  Hooker  707 

Bridgeport  v.  Aetna  L  Co.  797 
Brigham  v.  CarUsle  733 
British  W.  E.  &  M.  Co.  v.  Under- 
ground E.  Rys.  814 
Brosnan  v.  Sweetser  821 
Brown  v.  Kendall  623 

V.  White  728 

Burk  V.  Creamery  P.  M.  Co.  177 

Burns  v.  Erben  442 


Page 

Burrows  v.  March  Gas  Co.  228 

Burtraw  v.  Clark  813 

Bush  V.  Commonwealth  142 
Butler  V.  Burton-on-Trent  Union     378 

Campbell  v.  Race  501 

Casselberry  v.  Forquer  666 

Castell  V.  Bambridge  72 

Central  Ry.  v.  Price  76 

Chaddock  v.  Plummer  189 

Chaplin  v.  Hicks  761 

Chappell  V.  Jardine  13 

Chase  v.  Ingalls  656 

Chicago  V.  Huenerbein  722 

Clark  V.  Chambers  125 

Cleary  v.  Booth  455 
Clydebank E.  & S.  Co.  v. Yzquierdo    853 

Cocliran  v.  Boston  844 

Cole  V.  German  S.  &  L.  Soc.  293 

Commonwealth  v.  Campbell  154 

V.  Chapman  6 

—  V.  ChurchiU  28 

V.  Crotty           \  655 

V.  Donahue  602 

V.  Dougherty  590 

V.  Drum                            ^  546 

V.  Hackett  138 

V.  McAfee  460 

V.  Miller  522 

Comstock  V.  Connecticut  R.  &  L. 

Co.  742 

Cooper's  Case  572 

Cope  V.  Sharpe  597 

Corey  v.  Havener  70 

Creighton  v.  Commonwealth  556 

Currier  v.  McKee  371 

Dady  v.  Condit  698 

Dalv  V.  Bates  411 

Darley  M.  C.  Co.  v.  Mitchell  667 

Day  V.  Woodworth  830 

De'Camp  v.  Sioux  City  269 

Dennison  v.  Van  Wormer  365 

Denny  v.  New  Yor>  C.  R.  R.  218 

Derry  v.  Flitner  172 

Doll  V.  Ribetti  342 

Donovan's  Case  399 

Dragovich  v.  Iroquois  L  Co.  405 

Dugdale  v.  Regina  43 


X 


TABLE    OF    CASES. 


Eaton  V.  Boissonnault 
Eberhardt  v.  Gla.sco  M.  T.  Assoc. 
Eckert  v.  Long  Island  R.  R. 
Ehrgott  V.  New  York 
Elder  v.  Morrison 
Elmer  v.  Fessenden 
Everett  v.  Eastaff 

Fairfield  v.  Salem 

Fertich  v.  Michener 

Fetter  V.  Beal 

Fields  V.  Stokley 

Filburn  v.  People's  P.  &  A.  Co. 

First  Nat.  Bank  v.  Kinner 

Five  Tracts  of  Land  v.   United 

States 
Flint  V.  Bruce 

Ford  V.  Trident  Fisheries  Co. 
Fottler  V.  Moseley 
Fowler  v.  Oilman 
Fox  V.  Boston  &  M.  R.  R. 
Fulton  V.  Kalbach 

Gage  V.  Harvey 
Gay  V.  State 
Gibbons  v.  Pepper 
Oilman  v.  Emery 

V.  Noyes 

Glaspy  V.  Cabot 
Glassey  v.  Worcester  C.  S.  Ry. 
Glever  v.  Hynde 
Globe  R.  Co.  v.  Landa  C.  Co. 
Goddard  v.  Grand  Trunk  Ry. 
Goodheart  v.  Pennsylvania  R.  R. 
Goodwin  v.  Avery 
Grand  Tower  Co.  v.  Phillips 
Graves  v.  Johnson 
Green-Wheeler  Shoe  Co.  v.  Chi- 
cago Ry. 
Gregory  v.  Oakland  M.  C.  Co. 
Griffin  v.  Colver 
Guetzkow  V.  Andrews  , 
Guille  V.  Swan 

Hadley  v.  Baxendale 

Haines  v.  Schultz 

Handcock  ;,'.  Baker 

Hanks  v.  State 

Hard im an  /'.  Wholley 

Harrison  v.  Berkeley 

Henderson  v.  Dade  Coal  Co. 

Hendrickson  v.  Commonwealth 

Henry  v.  St.  Louis  K.  C.  &  N.  Ry. 

Herberd's  Case 

Herd  V.  Weardale  S.  C.  &  C.  Co. 

Heritage  v.  Dodge 

Hern  v.  Nichols 

Hichhorn  /;.  Bradley 

Higgins  V.  Minaghan 

V.  Watervliet  T.  Co. 

Hill  r.  Winsor 
Hodgedcn  v.  Hubbard 


Page 

Page 

846 

Hogan  V.  Bragg 

328 

319 

Hoj)ple  V.  Higbee 

807 

147 

Howland  v.  Blake  Manuf.  Co. 

487 

120 
6.51 

822 

Hunt  V.  Caskey 

583 

lUinois  Cent.  R.  R.  v.  Siler 

116 

379 

Ingraham  v.  Pulhnan  Co. 

791 

Isham  V.  Dow 

258 

792 

4.57 

Jackson  v.  Turrell 

826 

664 

V.  Wisconsin  Tel.  Co. 

174 

479 

3.5,5 

12 

Jones  V.  Boyce 

108 

Keleher  v.  Putnam 

478 

Kelsey  v.  Rebuzzini 

315 

706 

Kemble  v.  Farren 

850 

563 

King  V.  Bangs 

828 

65 

V.  Interstate  C.  S.  Ry. 

62 

302 

King's  Prerogative  in  Saltpetre, 

825 

The 

464 

220 

Kountz  V.  Kirkpatrick 

681 

330 

Krach  v.  Heilman 

359 

Kramer  v.  Wolf  C.  S.  Co. 

789 

367 

71 

Lake  County  v.  RoUins 

27 

39 

Lake  Shore  &  M.  S.  Ry.  v.  Pren- 

616 

tice 

874 

162 

Lamond  v.  Seacoast  C.  Co. 

756 

705 

Lane  v.  Atlantic  Works 

183 

287 

Langbridge's  Case 

1 

468 

Lawton  v.  Steele 

21 

777 

Lee  V.  Bude  &  T.  J.  Ry. 

22 

864 

Leeds  v.  Metropolitan  G.  L.  Co. 

723 

675 

Locke  V.  Stearns 

332 

619 

Loker  v.  Damon 

785 

679 

Lonergan  v.  Waldo 

774 

204 

Lords    Bailiff-Jurats    v.    Trinity 

House 

229 

222 

Louisville  v.  Hart 

278 

729 

LouisviUe  &  N.  R.  R.  v.  Stewart 

708 

711 

Lowenberg  v.  Rosenthal 

659 

76S 

Lynn  Gas  Co.  v.  Meriden  Ins.  Co 

80 

103 

Lyons  v.  Merrick 

349 

765 

McDonald  v.  Snelling 

241 

872 

McKennon  v.  Winn 

19 

433 

M'Lauchlan  v.  Anderson 

381 

24 

McLeod  V.  Jones 

607 

357 

McNicol's  Case 

397 

199 

Markley  v.  Whitman 

491 

209 

Martin  v.  Lovibond 

395 

252 

Masterton  v.  Mt.  Vernon 

731 

248 

Mathews  v.  Kansas  City  Rys. 

329 

415 

Mead  v.  Stratton 

360 

639 

Mediana,  The 

700 

458 

Memorandvun                        44,  527, 

528 

332 

Milliken's  Case 

401 

736 

Milostan  v.  Chicago 

213 

592 

Minor,  Ex  parte 

618 

335 

Minot  V.  Doherty 

375 

87 

Mirehouse  v.  Rennell 

5 

604  1 

Mohr  V.  Williams 

494 

TABLE    OF    CASES. 


XI 


Page 

Mortimer  v.  New  York  E.  R.  R.  16 

Moses  V.  Dubois  628 

Nash  V.  Western  U.  T.  Co.  172 
Nat.  Bank  of  Commerce  v.  New 

Bedford  691 

Nesbett  v.  Wilbur  617 

Neu  V.  McKechnie  364 
Norske  A.  Act.  v.  Sun  P.  &  P. 

Assoc.  802 
Note                                             526,  527 

O'Brien  v.  Cunard  S.  S.  Co.  484 

Ollet  V.  Pittsburg  C.  C.  &  S.  L.  Ry.  493 

Olson  V.  Gill  H.  I.  Co.  194 

Orbach  v.  Paramount  P.  Corp.  745 

Oxley  V.  Watts  647 

Oysted  v.  Shed  419 

Pacific  S.  W.  Co.  V.  Alaska  P. 

Assoc.  755 

Parker  v.  Russell  673 

Paul  V.  Summerhayes  476 

Payzu  V.  Saunders  794 

People  V.  Button  540 

V.  Cook  141,  569 

V.  Detroit  W.  L.  Works  520 

V.  Fitzgerald  422 

V.  Lewis  289 

— —  V.  Taylor  .467 

V.  Warren  418 

Perrott  v.  Shearer  820 

Pittsburg  R.  Co.  v.  Horton  191 

Plumb  V.  Cobden  F.  M.  Co.  382 

Plimimer,  Penobscot  L.  Assoc.  788 

Pond  V.  People  437 

Pooler  V.  Reed  658 

Prior  of  Lewis  v.  Bishop  of  Ely  1 

Proctor  V.  Adams  472 

Pullman  P.  C.  Co.  v.  Bluhm  134 

Putnam  v.  Payne  469 

Queen  v.  Jackson  461 

Redmond  v.  American  Mfg.  Co.  689 

Reeder  v.  Purdy  578 

Regina  v.  Conde  47 

— —  V.  Dadson  644 

■  V.  Downes  49 

V.  Dudley  506 

• V.  Fretwell  205 

V.  Griffin  454 

-^  V.  Halliday  231 

V.  Hewlett  531 

V.  Holland  102 

V.  Instan  54 

V.  Lesley  632 

■ V.  Lowe  46 

V.  MitcheU  182 

— — •  V.  Murphy  441 

V.  Randall  525 

V.  Rose  562 


Page 

Regina  v.  Smith  47 

V.  Towers  73 

V.  White  48 

Reiger  v.  Worth  748 

Resp.  V.  McCarty  514 

Rex  V.  Compton  414 

V.  Crutchley  513 

V.  DeMarny  104 

V.  Friend  45 

V.  Gill  76 

V.  Heath  42 

V.  Herthale  526 

V.  Pittwood  57 

V.  Smith  437 

V.  Squire  44 

V.  Sutton  40 

Rice  V.  Rice  727 

Roach  V.  Kelly  370 
Romney  Marsh  v.  Trinity  House     229 

Rowe  V.  L'nited  States  532 

Ryan  ;-.  New  York  C.  R.  R.  89 

Ryerson  v.  Chapman  833 

Saenger  v.  Locke  410 
St.  Louis,  I.  M.  &  S.  Ry.  v.  Taylor       31 

Salisbury  v.  Green  611 

Samuel  v.  Payne   i  650 

Sapwell  V.  Bass  758 
Sauter  v.  New  York  C.  &  H.  R. 

R.  R.  135 

Scanlon  v.  Wedger  486 
Scheffer  v.  Washington  C.  &  G. 

R.  R.  99 

Schoepflin  v.  Cofi"ey  284 
Schwartz  v.  California  G.  &  E. 

Corp.           -  307 

Scott  V.  Shepherd  110 

Seavey  v.  Preble  474 

Shingiemeyer  ;.'.  Wright  488 

Shorter  v.  People  660 

Six  Carpenters'  Case  646 

Sloan  Baird                |  843 

Smith  V.  Bergengren  852 

V.  Fife  Coal  Co.  393 

V.  London  &  S.  W.  Ry.  93 

South  Side  P.  Ry.  v.  Trich  255 

Sowles  V.  Moore  66 

State  ;'.  Donnelly  547 

V.  Evans  555 

V.  Gut  483 

V.  Knight  23 

V.  Knoxville  420 

V.  Melton  570 

V.  O'Brien  78 

— —  V.  Patterson  573 

V.  Scates  68 

V.  Sherman  558 

V.  Wray  466 

Stewart  v.  Longhurst  406 
Stodghill  V.  Chicago  B.  &  A.  R.  R.   671 

Stoffer  V.  State  536 

Stone  V.  Boston  &  A.  R.  R.  262 


xu 


TABLE    OF    CASES. 


Page 

Storey  v.  State                 ~  445 

Strang  v.  Russell  645 

Sullivan  v.  Old  Colonv  R.  R.  582 

Sullivan  v.  Old  C.  S.  Ry.  676 

Sundine's  Case  403 

Surocco  V.  Geary  470 

Thomas  v.  Kinkead  449 
Thompson  v.  Louisville  &  N.  R.  R.    144 

Tillman  v.  Beard  444 

Tinkle  v.  Dunivant  463 

Tompkins  v.  Knut  564 

Torrv  v.  Black  811 

Towaliger  F.  P.  Co.  v.  Sims  261 

Trim  J.  D.  S.  Board  v.  KeUy  387 

Tuck  r.  Beliles  416 

Turner  r.  Page  149 

Uhlein  v.  Cromack  560 
United  States  v.  Bethlehem  Steel 

Co.  858 

V.  Clark  426 

V.  Freeman  158 

V.  Jones  519 

—  r.  Wiltberger  35 


Page 

Vandine,  petitioner 

32 

Vincent  v.  Lake  E.  T.  Co. 

612 

Vcsburg  V.  Putney 

490 

Vredenburg  v.  Behan 

351 

Washington  &  G.  R.  R.  v.  Hickey 

271 

Watson  V.  Kentucky  &  I.  B.  &  R.  R. 

312 

V.  State 

654 

Western  U.  T.  Co.  v.  Hall 

750 

Westfield  v.  Mayo 

837 

White  V.  Miller 

747 

Whitwham  v.  Westminster  B.  C.  & 

C.  Co. 

693 

W^ild's  Case 

572 

Williams  v.  Brennan 

358 

Winkfield,  The 

823 

Wise  V.  Dunning 

236 

V.  United  States 

861 

Wolf  V.  Studebaker 

786 

Wood  V.  Pennsylvania  R.  R. 

84 

V.  State 

566 

Yoder  v.  Yoder 


583 


CASES  ON  LEGAL  LIABILITY. 


CHAPTER   I. 
LAW. 

PRIOR   OF   LEWIS   v.  BISHOP  OF   ELY. 

Common  Bench.     1304. 

[Reported  Year  Booh  S2  Edw.  I.  Zl-I 

This  was  a  suit  brought  against  the  defendant  to  test  the  right  of 
appointraent  by  the  bishop  to  a  living  which  was  within  the  gift  of  the 
prior.  The  prior  alleged  that  he  had  presented  a  suitable  person  for 
the  living  but  the  bishop  refused  liim,  and  appointed  another  person. 

Toutheby  for  the  defendant  alleged  that  the  person  presented  was  an 
unsuitable  person  for  three  reasons  stated  by  him.^ 

Herle  for  the  plaintiff.  He  presented  a  suitable  person  ready  &c. 
where  and  when  &c.  But  consider  whether  he  shall  be  received  to 
aver  these  three  causes ;  for  the  judgment  to  be  by  3-ou  now  given  will 
be  hereafter  an  authority  in  every  Quare  no7i  admisit  in  England. 


LANGBRIDGE'S   CASE. 
Common  Bench.     1345. 

[Reported  Year  Book  19  Ediv.  III.  375.] 

This  was  a  suit  to  recover  land.  The  party  defendant  (called  the 
tenant)  made  default ;  whereupon  Langbridge  prayed  that  he  might  be 
admitted  to  defend,  because  the  tenant  had  only  a  life  estate,  and  the 
remainder  was  in  himself^ 

1  The  statement  of  the  case  has  been  simplified,  and  only  such  portions  of  the  case 
are  given  as  Ijear  on  the  sources  of  law.  —  Ed. 

1 


2  langbridge's  case.  [chap.  I. 

Huse  (for  the  petitioner)  produced  a  deed  showing  the  gift. 

R.  Thorpe  (for  the  demandant^.  You  see  plainly  that  his  right  is  not 
proved  by  record  or  by  fine,  and  we  cannot  have  any  answer  to  this 
deed  nor  is  it  an  issue  to  sa}-  that  he  has  nothing  in  remainder;  and 
since  we  cannot  have  an  answer  to  his  statement,  we  pra}'  seisin. 

Sharshl'lle,  J.  One  has  heard  speak  of  that  which  Bereford  and 
Herle  [former  judges]  did  in  such  a  case,  that  is  to  say,  when  a  remain- 
der was  limited  in  fee  simple  by  fine  the}'  admitted  the  person  in  re- 
mainder to  defend,  and  it  was  said  bj'  them  that  it  would  be  otherwise 
if  the  limitation  were  by  deed  in  pais;  but  nevertheless,  no  precedent  is 
of  such  force  as  that  which  is  right."   .   .   . 

Hillary,  J.  Demandant,  will  you  say  anything  else  to  oust  him  from 
being  admitted  ? 

B.  Thorpe.  If  it  so  seems  to  you,  we  are  ready  to  saj-  what  is  suffi- 
cient ;  and  I  think  you  will  do  as  others  have  done  in  the  same  case,  or 
else  we  do  not  know  what  the  law  is. 

Hillary,  J.     It  is  the  will  of  the  Justices. 

Stonore,  C.  J.     No ;  law  is  that  which  is  right. ^ 


Blackstones'  Commentaries,  Book  I,  pp.  68-73. 

Some  have  divided  the  common  law  into  two  principal  grounds  or 
foundations:  1.  Established  customs;  such  as  that,  where  there  are 
three  brothers,  the  eldest  brother  shall  be  heir  to  tiie  second,  in  exclu- 
sion of  the  youngest :  and  2.  Established  rules  and  maxims;  as,  "  that 
the  king  can  do  no  wrong,  that  no  man  shall  be  bound  to  accuse  him- 
self," and  the  like.  But  I  take  these  to  be  one  and  the  same  thing. 
For  the  authority  of  these  maxims  rests  entirely  ui)on  genei'al  reception 
and  usage :  and  the  onl\'  method  of  proving  that  this  or  that  maxim  is 
a  rule  of  the  common  law,  is  by  showing  that  it  hath  been  always  the 
custom  to  observe  it. 

But  here  a  very  natural,  and  very  material,  question  arises  :  how  are 
these  customs  and  maxims  to  be  known,  and  by  wliom  is  their  validity 
to  be  determined  ?  The  answer  is,  b\'  the  judges  in  the  several  courts 
of  justice.  They  are  the  depositaries  of  the  laws  ;  the  living  oracles 
who  must  decide  in  all  cases  of  doubt,  and  who  are  bound  b}-  an  oath 
to  decide  according  to  the  law  of  the  land.  The  knowledge  of  that  law 
is  derived  from  experience  and  study  ;  from  the  ''  viffinti  annorum  lucji- 
brationes"  which  Fortescue  mentions  ;  and  from  being  long  personally 
accustomed  to  the  judicial  decisions  of  their  predecessors.  And  indeed 
these  judicial  decisions  are  the  principal  and  most  authoritative  evi- 
dence tliat  can  be  given,  of  the  existence  of  such  a  custom  as  shall 
form  a  [)art  of  the  common  law.  The  judgment  itself,  and  all  the  pro- 
ceedings previous  thereto,  are  carefully  registered  and  preserved,  under 

1  Come  resoun. 

2  Nanyl;  ley  est  resoun. 


CHAP.  I.]  LANGBEIDGE'S    CASE.  3 

the  name  of  records,  in  public  repositories  set  apart  for  that  particular 
purpose  ;  and  to  them  frequent  recourse  is  had  when  any  critical  ques- 
tion arises  in  the  determination  of  which  former  precedents  may  give 
light  or  assistance.  And  therefore,  even  so  earl}'  as  the  conquest,  we 
find  the  '■'■  prceteritorum  memoria  eventorum  "  reckoned  up  as  one  of  the 
chief  qualifications  of  those,  who  were  held  to  be  "  legihas  patrim  oj^time 
instituti."  For  it  is  an  established  rule  to  abide  by  former  precedents, 
where  the  same  points  come  again  in  litigation  :  as  well  to  keep  the 
scale  of  justice  even  and  steady,  and  not  liable  to  waver  witli  every  new 
judge's  opinion  ;  as  also  because  the  law  in  that  case  being  solemnly 
declared  and  determined,  what  before  was  uncertain,  and  perhaps  indif- 
ferent, is  now  become  a  permanent  rule,  which  it  is  not  in  the  breast  of 
anj-  subsequent  judge  to  alter  or  var}-  from,  according  to  his  private 
sentiments  :  he  being  sworn  to  determine,  not  according  to  his  own 
private  judgment,  but  according  to  the  known  laws  and  customs  of  the 
land  ;  not  delegated  to  pronounce  a  new  law,  but  to  maintain  and  ex- 
pound the  old  one.  Yet  this  rule  admits  of  exception,  where  the  former 
determination  is  most  evidently  contrary  to  reason  ;  much  more  if  it  be 
clearly  contrar}'  to  the  divine  law.  But  even  in  such  cases  the  subse- 
quent judges  do  not  pretend  to  make  a  new  law,  but  to  vindicate  the 
old  one  from  misrepresentation.  For  if  it  be  found  that  the  former 
decision  is  manifestly  absurd  or  unjust,  it  is  declared,  not  that  sucli  a 
sentence  was  bad  laic,  but  that  it  was  not  laio  ;  that  is,  tliat  it  is  not 
the  established  custom  of  the  realm,  as  has  been  erroneously  deter- 
mined. And  hence  it  is  tliat  our  lawyers  are  with  justice  so  copious 
in  their  encomiums  on  the  reason  of  the  common  law ;  that  they  tell  us 
that  the  law  is  tlie  perfection  of  reason,  that  it  always  intends  to  con- 
form thereto,  and  that  what  is  not  reason  is  not  law.  Not  that  the  par- 
ticular reason  of  every  rule  in  the  law  can  at  this  distance  of  time  be 
always  precisely  assigned  ;  but  it  is  sufficient  that  there  be  nothing  in 
the  rule  flatly  contradictory  to  reason,  and  then  the  law  will  presume 
it  to  be  well  founded.  And  it  hath  been  an  ancient  observation  in  the 
laws  of  England,  that  whenever  a  standing  rule  of  law,  of  which  the 
reason  perhaps  could  not  be  remembered  or  discerned,  hath  been 
wantonly  broken  in  upon  by  statutes  or  new  resolutions,  the  wisdom  of 
the  rule  hath  in  the  end  appeared  from  the  inconveniences  tliat  have 
followed  the  innovation. 

The  doctrine  of  the  law  then  is  this:  that  precedents  and  rules  must 
be  followed,  unless  flatly  absurd  or  unjust :  for  though  their  reason  be 
not  obvious  at  first  view,  yet  we  owe  such  a  deference  to  former  times 
as  not  to  suppose  that  they  acted  wholly  without  consideration.  To 
illustrate  this  doctrine  by  examples.  It  has  been  determined,  time  out 
of  mind,  that  a  brother  of  the  half  blood  shall  never  succeed  as  heir  to 
the  estate  of  his  half  brother,  but  it  shall  rather  escheat  to  the  king, 
or  other  superior  lord.  Now  this  is  a  positive  law,  fixed  and  estab- 
lished by  custom,  which  custom  is  evidenced  by  judicial  decisions;  and 
therefore  can  never  be  departed  from  b}'  anj-  modern  judge  without  a 


4  langbridge's  case.  [chap,  l 

breach  of  his  oath  and  the  Uiw.  For  herein  there  is  nothing  repugnant 
to  natural  justice;  though  the  artificial  reason  of  it,  drawn  from  the 
feodal  law,  may  not  be  quite  obvious  to  everybody.  And  therefore, 
though  a  modern  judge,  on  account  of  a  supposed  hardship  upon  the 
half  brother,  might  wish  it  had  otherwise  been  settled,  yet  it  is  not  in 
his  power  to  alter  it.  But  if  any  court  were  now  to  determine,  that  an 
elder  brother  of  the  half  blood  miglit  enter  upon  and  seize  an}-  lands 
that  were  purchased  by  his  younger  brother,  no  subsequent  judges 
would  scruple  to  declare  that  such  prior  determination  was  unjust,  was 
unreasonable,  and  therefore  was  not  laic.  So  tliat  the  law.,  and  the 
opinion  of  the  judge.,  are  not  always  convertible  terms,  or  one  and 
the  same  thing ;  since  it  sometimes  ma}'  happen  that  the  judge  may 
mistake  the  law.  Upon  the  whole,  however,  we  may  take  it  as  a  gen- 
eral rule,  "that  the  decisions  of  courts  of  justice  are  the  evidence  of 
what  is  common  law :  "  in  the  same  manner  as,  in  the  civil  law,  what 
the  emperor  had  once  determined  was  to  serve  for  a  guide  for  the 
future. 

The  decisions  therefore  of  courts  are  held  in  the  highest  regard,  and  are 
not  onl}'  preserved  as  authentic  records  in  the  treasuries  of  the  several 
courts,  but  are  handed  out  to  public  view  in  the  numerous  volumes  of 
reports  which  furnish  the  lawyer's  librar}'.  These  reports  are  histories 
of  the  several  cases,  with  a  short  summary  of  the  proceedings,  which 
ai'e  preserved  at  large  in  the  record  ;  the  arguments  on  both  sides  and 
the  reasons  the  courts  gave  for  this  judgment ;  taken  down  in  short 
notes  b}'  persons  present  at  the  determination.  And  these  serve  as 
indexes  to,  and  also  to  explain,  the  records,  which  always,  in  matters 
of  consequence  and  nicet}',  the  judges  direct  to  be  searched.  The 
reports  are  extant  in  a  regular  series  from  the  reign  of  King  Edward 
the  Second  inclusive  ;  and,  from  his  time  to  that  of  Henry  the  Eighth, 
were  taken  by  the  prothonotaries,  or  chief  scribes  of  the  court,  at  the 
expense  of  the  crown,  and  published  annually,  whence  they  are  known 
under  the  denomination  of  the  year  books.  And  it  is  much  to  be 
wished  that  this  beneficial  custom  had,  under  proper  regulations,  been 
continued  to  this  day:  for,  though  King  James  the  First,  at  the  instance 
of  Lord  Bacon,  appointed  two  reporters  with  a  handsome  stipend  for 
this  purpose,  3et  tliat  wise  institution  was  soon  neglected,  and  from 
the  reign  of  Henry  the  Eighth  to  the  present  time  this  task  has  been 
executed  b}'  many  private  and  contemporary  hands;  who  sometimes 
through  haste  and  inaccurac}*,  sometimes  through  mistake  and  want  of 
skill,  have  published  very  crude  and  imperfect  (perhaps  contradictory) 
accounts  of  one  and  the  same  determination.  Some  of  the  most  valu- 
able of  the  ancient  reports  are  those  published  by  Lord  Chief-Justice 
Coke;  a  man  of  infinite  learning  in  his  profession,  though  not  a  little 
infected  with  the  pedantry  and  quaintness  of  the  times  he  lived  in, 
which  appear  strongly  in  all  his  works.  However,  his  writings  are  so 
hiuhly  esteemed,  that  they  are  generally  cited  without  the  author's 
name. 


CHAP.  I.]  LANGBRIDGE'S    CASE,  5 

Besides  these  reporters,  there  are  also  other  authors,  to  whom  great 
veneration  and  respect  is  paid  by  the  students  of  the  common  law. 
Such  are  Glanvil  and  Biacton,  Britton  and  Fleta,  Hengham  and  Little- 
ton, Statham,  Brooke,  Fitzherbert,  and  Staundforde,  with  some  others 
of  ancient  date  ;  whose  treatises  are  cited  as  authorit\',  and  are  evi- 
dence that  cases  have  formed}'  happened  in  which  such  and  such 
points  were  determined,  which  are  now  become  settled  and  first  princi- 
ples. One  of  the  last  of  these  methodical  writers  in  point  of  time,  whose 
works  are  of  any  intrinsic  authority  in  the  courts  of  justice,  and  do  not 
entirely  depend  on  the  strength  of  their  quotations  from  older  authors, 
is  the  same  learned  judge  we  have  just  mentioned,  Sir  Edward  Coke  ; 
who  hath  written  four  volumes  of  institutes,  as  he  is  pleased  to  call 
them,  though  they  have  little  of  the  institutional  method  to  warrant 
such  a  title.  The  first  volume  is  a  very  extensive  comment  upon  a 
little  excellent  treatise  of  tenures,  compiled  by  Judge  Littleton  in  the 
reign  of  Edward  the  Fourth.  This  comment  is  a  rich  mine  of  valuable 
common  law  learning,  collected  and  heaped  together  from  the  ancient 
reports  and  year  books,  but  greatly  defective  in  method.  The  second 
volume  is  a  comment  upon  man}'  old  acts  of  parliament,  without  any 
systematical  order  ;  the  third  a  more  methodical  treatise  of  the  pleas  of 
the  crown  ;  and  the  fourth  an  account  of  the  several  species  of  courts. 


Parke,  J.,  in  Mirehouse  v.  Rennell,  1  CI.  &  F.  527,  546.^  The  pre- 
cise facts  stated  b}'  your  Lordshi|)s  have  never,  as  far  as  we  can  learn, 
been  adjudicated  upon  in  any  Court ;  nor  is  there  to  be  found  any 
opinion  upon  them- of  any  of  our  Judges,  or  of  those  ancient  text  writers 
to  whom  we  look  up  as  authorities.  The  case,  therefore,  is  in  some 
sense  new,  as  many  others  are  which  continually  occur ;  but  we  have 
no  right  to  consider  it,  because  it  is  new,  as  one  for  which  the  law  has 
not  provided  at  all ;  and  because  it  has  not  yet  been  decided,  to  decide 
it  for  ourselves,  according  to  our  own  judgment  of  what  is  just  and 
expedient.  Our  common-law  system  consists  in  the  appljing  to  new 
combinations  of  circumstances  those  rules  of  law  which  we  derive  from 
legal  principles  and  judicial  precedents ;  and  for  the  sake  of  attaining 
uniformity,  consistency,  and  certainty,  we  must  appl}-  those  rules,  where 
they  are  not  plainly  unreasonable  and  inconvenient,  to  all  cases  which 
arise;  and  we  are  not  at  liberty  to  reject  them,  and  to  abandon  all 
analogy  to  them,  in  those  to  which  the}'  have  not  yet  been  judicially 
applied,  because  we  think  that  the  rules  are  not  as  convenient  and 
reasonable  as  we  ourselves  could  have  devised.  It  appears  to  me  to 
be  of  great  importance  to  keep  this  principle  of  decision  steadily  in 
view,  not  merely  for  the  determination  of  the  particular  case,  but  for 
the  interests  of  law  as  a  science. 

1  Cited  iu  Wambaugh,  Study  of  Cases,  §  77  :  and  see  §§  73-79.  —  Ed. 


6  COMMONWEALTH    V.    CHAPMAN.  [CHAP.    I. 

COMMONWEALTH  v.    CHAPMAN. 
Supreme  Judicial  Court  of  Massachusetts.      1848. 
[Reported  13  Metcalf,  68.] 

Shaw,  C.  J.  Tliis  was  an  iiulictment  against  the  defendants  for  a 
false  and  malicious  libel,  tried  before  the  Court  of  Conimoa  Pleas,  and, 
upon  a  conviction  there,  the  case  is  brought  before  this  court,  upon  an 
exception  which  has  been  most  elaborately  argued  b}-  the  learned 
counsel  for  the  defendants,  and  which,  if  sustained,  must  go  to  the 
foundation  of  the  prosecution  ;  namelj-,  that  there  is  no  law  of  this 
Commonwealth  b3'  whicli  the  writing  and  publishing  of  a  malicious  libel 
can  be  prosecuted  by  indictment,  and  punished  as  an  offence.  The 
proposition  struck  us  witli  great  surprise,  as  a  most  startling  one  ;  but 
as  it  was  seriously  presented  and  earnestly  urged  in  argument,  we  felt 
bound  to  listen,  and  give  it  the  most  careful  consideration;  but  after 
the  fullest  deliberation,  we  are  constrained  to  say,  that  we  can  enter- 
tain no  more  doubt  upon  the  point  than  we  did  when  it  was  first 
offered. 

It  is  true  that  there  is  no  statute  of  the  Commonwealth  declaring  the 
writing  or  publishing  of  a  written  libel,  or  a  malicious  libel,  by  signs 
and  pictures,  a  punishable  offence.  But  this  goes  little  wa\'  towards 
settling  the  question.  A  great  part  of  the  municipal  law  of  Massa- 
chusetts, both  civil  and  crimimd,  is  an  unwritten  and  traditionary  law. 
It  has  been  common  to  denominate  this  "the  common  law  of  Fa^h- 
land,"  because  it  is  no  doubt  true  that  a  large  portion  of  it  has  been 
derived  from  the  laws  of  England,  either  the  common  law  of  England, 
or  those  English  statutes  passed  before  the  emigration  of  our  ancestors, 
and  constituting  a  part  of  that  law,  by  which,  as  English  subjects,  they 
were  governed  when  they  emigrated  ;  or  statutes  made  afterwards,  of  a 
general  nature,  in  amendment  or  modification  of  the  common  law, 
which  were  adopted  in  the  colony  or  province  b\'  general  consent. 

In  addition  to  tliese  sources  of  unwritten  law,  some  usages,  growing 
out  of  the  peculiar  situation  and  exigencies  of  the  earlier  settlers  of 
Massachusetts,  not  traceable  to  any  written  statute  or  ordinance,  but 
adopted  b}'  general  consent,  have  long  had  the  force  of  law ;  as,  for 
instance,  the  convenient  practice,  by  which,  if  a  married  woman  join 
with  her  husband  in  a  deed  conveying  land  of  whicli  she  is  seized  in 
her  own  riglit,  and  simply  acknowledge  it  before  a  magistrate,  it  sliall 
be  valid  to  pass  her  land,  witliout  the  more  expensive  process  of  a  fine, 
required  by  the  common  law.  Indeed,  considering  all  these  sources  of 
unwritten  and  traditionary  law,  it  is  now  more  accurate,  instead  of  the 
common  law  of  England,  which  constitutes  a  part  of  it,  to  call  it  col- 
lectiveh'  the  common  law  of  Massachusetts. 

To  a  very  great  extent,  the  unwritten  law  constitutes  the  basis  of  our 
jurisprudence,  and  furnishes  the  rules  bj'  which  public  and  private  rights 


CHAP.  I.]  COMMONWEALTH   V.   CHAPMAN.  7 

are  established  and  secured,  the  social  relations  of  all  persons  regulated, 
their  rights,  duties,  and  obligations  determined,  and  all  violations  of 
duty  redressed  and  punished.  Without  its  aid,  the  written  law,  em- 
bracing the  constitution  and  statute  laws,  would  constitute  but  a  lame, 
partial,  and  impracticable  system.  Even  in  many  cases,  where 
statutes  have  been  made  in  respect  to  particular  subjects,  the\'  could 
not  be  carried  into  effect,  and  must  remain  a  dead  letter,  without  the 
aid  of  the  common  law.  In  cases  of  murder  and  manslaughter,  the 
statute  declares  the  punishment ;  but  what  acts  shall  constitute  murder, 
what  manslaughter,  or  what  justifiable  or  excusable  homicide,  are  left 
to  be  decided  by  the  rules  and  principles  of  the  common  law.  80,  if 
an  act  is  made  criminal,  but  no  mode  of  prosecution  is  directed,  or  no 
punishment  provided,  the  common  law  furnishes  its  ready  aid,  pre- 
scribing the  mode  of  prosecution  by  indictment,  the  common  law 
punishment  of  fine  and  imprisonment.  Indeed,  it  seems  to  be  too 
obvious  to  require  argument,  tliat  without  the  common  law,  our  legis- 
lation and  jurisprudence  would  be  impotent,  and  wholly'  deficient  in 
completeness  and  symmetry,  as  a  system  of  municipal  law.  ->] 

It  will  not  be  necessary  here  to  consider  at  large  the  sources  of  the 
unwritten  law,  its  authority  as  a  binding  rule,  derived  from  long  and 
general  acquiescence,  its  provisions,  limits,  qualifications,  and  excep- 
tions, as  established  bv  well  authenticated  usage  and  tradition.  It  is 
sufficient  to  refer  to  1  Bl.  Com.  63  et  seq. 

If  it  be  asked,  "  How  are  these  customs  or  maxims,  constituting  the 
common  law  to  be  known,  and  by  whom  is  their  validity  to  be  deter- 
mined?" Blackstone  furnishes  the  answer;  "by  the  judges  in  the 
several  courts  of  justice.  The}'  are  the  depositaries  of  the  laws,  the 
living  oracles,  who  must  decide  in  all  cases  of  doubt,  and  wlio  are 
bound  by  oath  to  decide  according  to  the  law  of  the  land.  Their 
knowledge  of  that  law  is  derived  from  experience  and  study,  "  and 
from  being  long  personall}'  accustomed  to  the  judicial  decisions  of 
their  predecessors."     1  Bl.  Com.  69. 

Of  course,  in  coming  to  any  such  decision,  judges  are  bound  to 
resort  to  the  best  sources  of  instruction,  such  as  the  records  of  courts 
of  justice,  well  authenticated  histories  of  trials,  and  books  of  reports, 
digests,  and  brief  statements  of  such  decisions,  prepared  b_y  suitable 
persons,  and  the  treatises  of  sages  of  the  profession,  whose  works  have 
an  established  reputation  for  correctness. 

That  there  is  such  a  thing  as  a  common  or  unwritten  law  of  Massa- 
chusetts, and  that,  when  it  can  be  autlienticall}'  established  and  sus- 
tained, it  is  of  equal  authority  and  binding  force  with  the  statute  law, 
seems  not  seriously  contested  in  the  argument  before  us.  But  it  is 
urged  that,  in  the  range  and  scope  of  this  unwritten  law,  there  is  no 
provision  which  renders  the  writing  or  publishing  of  a  malicious  libel 
punishal)le  as  a  criminal  offence. 

The  stress  of  the  argument  of  the  learned  counsel  is  derived  from  a 
supposed  qualification  of  the  general  proposition  in  the  constitution  of 


8  COMMONWEALTH  V.   CHAPMAN.  [CHAP.  L 

Massachusetts,  usuall}-  relied  on  in  proof  of  tlie  continuance  in  force 
of  the  rules  and  principles  of  the  common  law,  as  the3'  existed  before 
the  adoption  of  the  constitution.  The  clause  is  this :  Chap.  6,  Art.  1, 
Sect.  6  :  "  All  the  laws  which  have  been  adopted,  used,  and  approved  in 
the  province,  colony,  or  state  of  Massachusetts  Bay  and  usually  prac- 
tised on  in  the  courts  of  law,  shall  still  remain  and  be  in  full  force 
until  altered  or  repealed  by  the  legislature ;  such  parts  only  excepted 
as  are  repugnaut  to  the  rights  and  liberties  contained  in  this 
constitution." 

It  is  then  argued,  that  it  is  in  virtue  of  this  clause  of  the  constitu- 
tion that  the  common  law  of  England,  and  all  other  laws  existing 
before  the  revolution,  remain  in  force,  and  that  this  clause  so  far 
modifies  the  general  proposition,  that  no  laws  are  saved,  but  those 
which  have  been  actually  applied  to  cases  in  judgment  in  a  court  of 
legal  proceeding ;  and  unless  it  can  be  shown  affirmatively  that  some 
judgment  has  been  rendered,  at  some  time  before  the  adoption  of  the 
constitution,  aflBrmative  of  an\-  particular  rule  or  principle  of  the 
common  law,  such  rule  is  not  brouglit  within  the  saving  power  of  this 
clause,  and  cannot  therefore  be  shown  to  exist.  We  doubt  the  sound- 
ness of  this  proposition,  and  the  correctness  of  the  conclusion  drawn 
from  it. 

We  do  not  accede  to  the  proposition,  that  the  present  existence  and 
effect  of  the  whole  body  of  law,  which  existed  before  the  constitution, 
depends  soleh'  upon  this  provision  of  it.  We  take  it  to  be  a  well- 
settled  principle,  acknowledged  by  all  civilized  states  governed  by 
law,  that  by  means  of  a  political  revolution,  b}-  which  the  political 
organization  is  changed,  the  municipal  laws,  regulating  their  social 
relations,  duties,  and  rights,  are  not  necessarilj'  abrogated.  They, 
remain  in  force,  except  so  far  as  the}'  are  repealed  or  modified  by  the 
new  sovereign  authority.  Indeed,  the  existence  of  this  body  of  laws, 
and  the  social  and  personal  rights  dependent  upon  them,  from  1776, 
when  the  Declaration  of  Independence  was  made,  and  our  political 
revolution  took  place,  to  1780,  when  this  constitution  was  adopted, 
depend  on  this  principle.  The  clause  in  the  constitution,  therefore, 
though  highly  proper  and  expedient  to  remove  doubts,  and  give 
greater  assurance  to  the  cautious  and  timid,  was  not  necessary  to 
preserve  all  prior  laws  in  force,  and  was  rather  declaratory  of  an 
existing  rule,  than  the  enactment  of  a  new  one.  We  think,  therefore, 
it  should  have  such*  a  construction  as  best  to  carry  into  eflfect  the 
great  principle  it  was  intended  to  establish. 

But  further ;  we  think  the  nrgument  is  unsound  in  assuming  that  no 
rule  of  the  common  law  can  be  established  under  this  clause  of  the 
constitution,  without  showing  afl!irmatively,  that  in  some  judicial  pro- 
ceeding, such  rule  of  law  has  been  drawn  in  question  and  affirmed, 
previously  to  the  adoption  of  the  constitution.  During  that  time  there 
were  no  published  report  of  judicial  proceedings.  The  records  of 
courts  were  very  imperfectly  kept,  and  afford  but  little  information  in 


CHAP.  I.]  COMMONWEALTH   V.   CHAPMAN".  9 

regard  to  the  rules  of  law  discussed  and  adopted  in  them.  And  who 
has  examined  all  the  records  of  all  the  criminal  courts  of  Massachu- 
setts, and  can  declare  that  no  records  of  such  prosecutions  can  be 
found?  But  so  far  as  it  regards  libel,  as  a  criminal  offence,  we  think 
it  does  appear,  from  the  very  full  and  careful  examination  of  the  late 
Judge  Thacher  (^Commonwealth  v.  Whitmarsh,  Thacher's  Crim. 
Cases,  441),  that  many  prosecutions  for  libel  were  instituted  in  the 
criminal  courts  before  the  Revolution,  and  none  were  ev^er  quashed  or 
otherwise  disposed  of,  on  the  ground  that  there  was  no  law  rendering 
libels  punishable.  In  the  case  of  the  indictments  returned  against 
Governor  Gage  and  others,  verj'  much  against  the  will  of  the  judges, 
those  indictments  were  received  and  filed,  and  remained,  until  non 
prossed  hy  the  king's  attorney-general.  This  investigation  of  the 
histor}-  of  the  common  law  of  Massachusetts  is  so  thorough,  complete, 
and  satisfactor}',  that  it  is  sufficient  to  refer  to  it,, as  a  clear  elucidation 
of  the  subject. 

But  we  think  there  is  another  species  of  evidence  to  prove  the 
existence  of  the  common  law,  making  libel  an  offence  punishable  by 
law,  clear,  satisfactory,  and  decisive ;  and  that  is,  these  rules  of  law, 
with  some  modification,  caused  by  the  provisions  of  the  constitution, 
have  been  affirmed,  declared,  and  ratified  by  the  judiciary  and  the 
legislative  departments  of  the  existing  government  of  Massachusetts, 
b}-  those  whose  appropriate  province  and  constitutional  duty  it  was 
to  act  and  decide  upon  them ;  so  that  the}'  now  stand  upon  a  basis  of 
authorit}'  which  cannot  be  shaken,  and  must  so  stand  until  altered  or 
modified  by  the  legislature. 

"When  our  ancestors  first  settled  this  countr}*,  they  came  here  as 
English  subjects ;  the}''  settled  on  the  land  as  English  territor}',  con- 
stituting part  of  the  realm  of  England,  and  of  course  governed  by  its 
laws  ;  they  accepted  charters  from  the  English  government,  conferring 
both  political  powers  and  civil  privileges  ;  and  they  never  ceased  to 
acknowledge  themselves  English  subjects,  and  never  ceased  to  claim 
the  rights  and  privileges  of  English  subjects,  till  the  Revolution.  It  is 
not  therefore,  perhaps,  so  accurate  to  say  that  they  established  the 
laws  of  England  here,  as  to  say,  that  they  were  subject  to  the  laws  of 
England.  When  the}'  left  one  portion  of  its  territory,  they  were  alike 
subject,  on  their  transit  and  when  they  arrived  at  anotlier  portion  of 
the  English  territory  ;  and  therefore  always,  till  the  Declaration  of 
Independence,  they  were  governed  and  protected  by  the  laws  of  Eng- 
land, so  far  as  those  laws  were  applicable  to  their  state  and  condition. 
Under  this  category  must  come  all  municipal  laws  regulating  and 
securing  the  rights  of  real  and  personal  property,  of  person  and  per- 
sonal liberty,  of  habitation,  of  reputation  and  character,  and  of  peace. 
The  laws  designed  for  the  protection  of  reputation  and  character,  and 
to  prevent  private  quarrels,  affrays,  and  breaches  of  peace,  by  punish- 
ing malicious  libel,  were  as  important  and  as  applicable  to  the  state 
and  condition  of  the  colonists  as  the  law  punishing  violations  of  the 


10  COMMOXWEALTII   V.   CHAPMAN.  [CHAP,   I. 

rights  of  property,  of  person,  or  of  habitation;  that  is,  as  laws  for 
piinisliing  larceny,  assault  and  battery,  or  burglary.  Being  part  of  the 
common  law  of  England,  applicable  to  the  state  and  condition  of  the 
colonists,  they  necessaril}'  applied  to  all  English  subjects  and  terri- 
tories, as  well  in  America  as  in  Great  Britain,  and  so  continued  applic- 
able till  the  Declaration  of  Independence. 

This,  therefore,  would  be  evidence,  a  priori,  that  they  were  in  force, 
and  were  adopted  by  the  clause  cited  from  the  constitution,  except  so 
far  as  modilied  by  the  excepting  clause. 

That  the  law  of  libel  existed,  at  the  first  migration  of  our  ancestors, 
and  during  the  whole  period  of  the  colonial  and  provincial  governments, 
is  proved  by  a  series  of  unquestionable  authorities.^ 

Exceptions  overruled.'^ 


1  The  learned  Chief  Justice  proceeded  to  show  that  these  authorities  had  been 
followed  in  Massachusetts  since  the  adoption  of  the  constitution.  —  Ed. 

2  See  to  the  same  effect  State  v.  Cawood,  2  Stew.  (Ala.)  360  ;  State  v.  Danforth,  3 
Conn.  112  ;  State  v.  Davis,  2  Penne.  (Del.)  139;  State  v.  Buchanan,  5  H.  &  J.  (Md.) 
317  ;  Smith  v.  People,  25  III.  17  ;  State  v.  Pulle,  12  Minn.  164  ;  Terr.  v.  Ye  Wan,  2 
Mont.  478  ;  State  v.  Rollins,  8  N.  H.  550  ;  Com.  v.  McHale,  97  Pa.  397  ;  State  v. 
Williams,  2  Overt.  (Tenn.)  108  ;  State  v.  La  Forrest,  71  Vt.  311  ;  Houston  v.  Com., 
87  Va.  257  ;  NichoUs  v.  State,  68  Wis.  416. 

In  State  v.  Danforth,  supra,  Hosmer,  C.  .).,  said  :  "It  is  indispensably  necessary 
that  there  should  exist  a  common  law,  on  the  broad  principles  of  public  convenience 
and  necessity,  defining  crimes  and  prescribing  ade<|uate  punishments.  To  determine, 
by  statute,  every  offence  and  direct  the  punishment  which  shall  be  inflicted,  has  not, 
so  far  as  I  know,  ever  been  attempted,  and  would  be  nearly  impracticable.  The  com- 
munity must,  at  least,  be  left  exposed  to  injuries  the  most  atrocious  ;  and  the  evils 
resulting  would  be  much  greater,  than  any  mind  will  anticipate,  from  the  exercise  of 
a  sound  discretion,  in  the  application  of  principles  and  analogies  which  the  common 
law  supplies."  —  Ed. 


CHAP,  l]  BLANKARD    V.    GALDY.  11 


BLANKARD  v.  GALDY. 
King's   Bench.     1693. 
[Reported  2  Salkeld,  411.] 

In  debt  on  a  bond,  the  defendant  prayed  oj-er  of  the  condition,  and 
pleaded  the  statute  E.  6.  against  buying  offices  concerning  the  admin- 
istration of  justice  ;  and  averred,  That  this  bond  was  given  for  the 
purchase  of  the  office  of  provost-marshal  in  Jamaica,  and  that  it  con- 
cerned the  administration  of  justice,  and  that  Jamaica  is  part  of  the 
revenue  and  possessions  of  the  Crown  of  England  :  Tlie  plaintiff  replied, 
that  Jamaica  is  an  island  beyond  the  seas,  which  was  conquered  from 
the  Indians  and  Spaniards  in  Queen  Elizabeth's  time,  and  the  inhabit- 
ants are  governed  by  their  own  laws,  and  not  by  tlie  laws  of  England  : 
The  defendant  rejoined,  That  before  such  conquest  they  were  governed 
by  their  own  laws  ;  but  since  that,  by  the  laws  of  England  :  Shower 
argued  for  the  plaintiff,  that,  on  a  judgment  in  Jamaica,  no  writ  of 
error  lies  here,  but  only  an  appeal  to  the  Council ;  and  as  they  are 
not  represented  in  our  Parliament,  so  they  are  not  bound  by  our  stat- 
utes, unless  specially  named.  ^^ide  And.  115.  Pemberton  contra 
argued,  that  by  the  conquest  of  a  nation,  its  liberties,  rights,  and  prop- 
erties are  quite  lost ;  that  by  consequence  their  laws  are  lost  too,  for 
the  law  is  but  the  rule  and  guard  of  the  other  ;  those  that  conquer,  can- 
not by  their  victory  lose  their  laws,  and  become  subject  to  others. 
Vide  Vaugh.  405.  That  error  lies  here  upon  a  judgment  in  Jamaica, 
which  could  not  be  if  they  were  not  under  the  same  law.  Et  per  Holt, 
C.  J.  &  Cur., 

First,  in  case  of  an  uninhabited  country  newl}'  found  out  by  English 
subjects,  all  laws  in  force  in  England  are  in  force  there  ;  so  it  seemed 
to  be  agreed. 

Secondl}',  Jamaica  being  conquered,  and  not  pleaded  to  be  parcel  of 
the  kingdom  of  England,  but  part  of  the  possessions  and  revenue  of 
the  Crown  of  England,  the  laws  of  England  did  not  take  place  there, 
until  declared  so  by  the  conqueror  or  his  successors.  The  Isle  of  Man 
and  Ireland  are  part  of  the  possessions  of  the  Crown  of  England  :  3'et 
retain  their  ancient  laws  :  That  in  Davis  36.  it  is  not  pretended,  tliat 
the  custom  of  tanistry  was  determined  hy  the  conquest  of  Ireland,  but 
by  the  new  settlement  made  there  after  the  conquest :  That  it  was  im- 
possible the  laws  of  this  nation,  by  mere  conquest,  without  more, 
should  take  place  in  a  conquered  countr}- ;  because,  for  a  time,  there 
must  want  officers,  without  which  our  laws  can  have  no  force  :  That  if 
our  law  did  take  place,  yet  they  in  Jamaica  having  power  to  make  new 
laws,  our  general  laws  ma\'  be  altered  by  theirs  in  particulars;  also 
the}'  held,  that  in  the  case  of  an  infidel  country,  their  laws  hs  conquest 
do  not  entirely  cease,  but  only  such  as  are  against  the  law  of  God  ;  and 


12  FIRST   NATIONAL   BANK   V.    KINNER.  [CHAP.   I. 

that  in  such  cases  where  the  laws  are  rejected  or  silent,  the  conquered 
country  shall  be  governed  according  to  the  rule  of  natural  equity. 

Judgment  pro  quer} 


FIRST  NATIONAL  BANK  v.  KINNER. 

Supreme  Court  of  Utah  Territory,  1873. 

[Reported  1   Viah  100.] 

Emerson,  J.  I;i  American  Ins.  Co.  v.  Canter,  1  Pet.  511,  the 
court,  by  Judge  Marshall,  say,  substantially,  that  the  laws  of  Florida, 
as  they  were  when  the  Territory  was  ceded,  so  far  as  not  inconsistent 
with  he  Constitution  and  Laws  of  the  United  States,  continued 
in  foi-ce  until  altered  by  the  newly  created  power  of  the  State.  (See, 
also.  United  States  v.  Powers,  11  How.  570;  Strothers  v.  Lucas,  12  Pet. 
410,  436.)  This  appears  to  be  the  settled  doctrine  in  regard  to  con- 
quered and  ceded  Territory  in  the  absence  of  special  treaty  stipulation. 
It  applies  to  territory  acquired  from  Mexico,  since  the  treaty  of  Guada- 
loupe  made  no  special  proN-ision  on  the  subject.  Utah  was  embraced 
in  that  acquisition.  As  in  Florida  the  pre-existing  law  was  Spanish, 
so  in  Utah,  it  was  Mexican,  and  in  both  cases  the  laws  were  derived 
mainly  from  the  laws  of  Rome.  In  neither  did  the  English  common 
law,  or  the  Statute  of  Frauds,  prevail.  Congress  made  no  special 
change,  and  the  Territorial  Legislature,  upon  whom  authority  was 
conferred,   have  made  no  express  enactment  upon  the  subject. 

This  Territory  was  first  settled  in  1847,  and  from  that  time  up  to 
the  acquisition  and  treaty  in  1848,  the  settlers  were  comparatively  few 
in  number.  There  were  no  settled  laws,  usages,  and  customs  among 
them.  They  came  here  as  American  citizens,  under  the  flag,  and 
claiming  the  protection  of  the  L'nited  States  Government. 

The  particular  class  of  persons  forming  the  great,  if  not  the  entire 
bulk  of  emigrants,  claim  to  have  furnished  troops  from  among  their 
own  numbers  to  assist  this  Government  in  its  war  against  Mexico. 

At  the  time  of  the  acquistion  and  treaty,  they  could  not  claim  Mexi- 
can citizenship,  and  have  never  adopted  its  laws  and  customs. 

Soon  after  the  change  of  sovereignty  by  the  treaty,  emigrants  in 

^  Another  report  of  the  same  case  may  be  found  in  4  Mod.  222.  In  that  case  the 
Court  16  reported  to  have  said:  "  And  therefore  it  was  held,  that  Jamaica  was  not  gov- 
erned by  the  laws  of  England  after  the  conquest  thereof,  till  new  laws  were  made:  for 
they  had  neither  sheriff  or  counties;  they  were  only  an  assembly  of  people  which  are 
not  bound  by  our  laws,  unless  particularly  mentioned.  In  Barbadoes  all  freeholds  are 
subject  to  debts,  and  are  esteemed  as  chattels  till  the  creditors  are  satisfied,  and  then 
the  lands  descend  to  an  heir;  but  the  law  is  other v\ise  here;  which  shows  that  though 
that  island  is  parcel  of  the  possessions  of  England,  yet  it  is  not  governed  by  the  laws 
made  here,  but  by  their  own  particular  laws  and  customs." 

Arc.  Earl  Derby's  Case,  2  And.  116;  Mem-  2  P.  Wms.  75.  See  Cross  v.  Harrison, 
16  How.  164;  Airhart  v.  Massieu,  98  U.  S.  491.— Ed. 


CHAP.  I.]  CHA.FPELL   V.    JARDINE.  13 

large  numbers  flocked  in  from  the  States  and  surrounding  Territories, 
and  for  many  years  there  has  been  an  organized  community. 

When  we  turn  to  the  communities  from  whence  these  emigrants  pro- 
ceeded, we  find  that  the\-  differed  one  from  another,  more  or  less,  in 
regard  to  their  laws  and  institutions.  No  two  are  alike.  In  the  most, 
it  is  true,  man}'  common-law  principles  and  doctrines  were  in  force. 
Still  the  body  of  the  common  law  in  each  was  peculiar  to  the  particular 
State,  and  it  was  rather  the  common  law  of  the  State  than  the  English 
common  law.  In  some,  the  English  statutes  had  been  received  as 
common  law ;  in  others,   not. 

These  diversities  make  it  impossible  to  assume  that  any  specific  body 
of  the  common  law  was  transplanted  to  the  Territory  b}^  the  fact  of" 
immigration. 

But  one  course  was  open,  and  that  was  for  the  whole  body  of  the 
people  to  agree,  expressly  or  tacitly,  upon  a  common  measure.  It  was 
to  be  expected  that  the  emigrants  would  not  be  contented  with  the 
loose  and  alien  institutions  of  an  outlying  Mexican  department,  and 
they  have  not  been. 

They  have  tacitly  agreed  upon  maxims  and  principles  of  the  common 
law  suited  to  their  conditions  and  consistent  with  the  Constitution  and 
Laws  of  the  United  States,  and  they  onl\-  wait  recognition  by  the  courts 
to  become  the  common  law  of  the  Territory-.  When  so  recognized, 
they  are  laws  as  certainly  as  if  expressly  adopted  by  the  law-making 
power. 


CHAPPELL   V.   JARDINE. 

Supreme  Court  of  Errors  of  Connecticut.     1884. 

[Reported  51  Connecticut,  64.] 

Park,  C.  J.*  This  is  a  suit  for  the  foreclosure  of  certain  mortgaged 
premises,  constituting  an  island,  known  as  Ram  Island,  in  Long  Island 
Sound.  The  complaint  alleges  that  the  land  mortgaged,  at  the  time 
the  deed  was  given,  lay  in  the  town  of  Southhold,  Suffolk  County,  in 
the  State  of  New  York,  and  it  is  averred  that  the  mortgage  was  re- 
corded in  the  oflflce  of  the  clerk  of  Sufl^olk  County  in  that  State.  It  is 
further  alleged  that  Ram  Island,  by  the  recent  establishment  of  the 
boundary  line  between  the  State  of  New  York  and  this  State,  has  be- 
come a  part  of  the  town  of  Stonington  in  this  State.  The  complaint  is 
demurred  to,  so  that  the  averment  stands  admitted  that  the  island  was, 
when  the  mortgage  was  made,  a  part  of  the  State  of  New  York. 

We  have  heretofore  held  (Elphick  v.  Hoffman,  49  Conn.  331)  that 
the  boundary  agreed  upon  by  the  joint  commission  of  the  two  States 
and  established  by  the  legislative  acceptance  of  both  States,  was  to  be 
regarded  as  presumably  a  designation  and  establishment  of  the  pre- 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


14  CHAPPELL   V.    JARDINE.  [CHAP.   L 

existing  boundary  line  which  had  become  lost,  and  not  as  the  establish- 
ment of  a  new  line,  leaving  the  matter  open  to  proof  in  special  cases. 
If  we  should  apply  that  rule  here,  and  consider  the  island  in  question 
as  having  been  legallv  a  part  of  this  State  when  the  mortgage  was 
made,  we  should  at  once  encounter  another  question  of  a  serious  nature. 
There  can  be  no  question  that  whatever  has  been  tlie  de  Jure  jurisdic- 
tioi;  over  the  island,  it  has  been  for  many  years  within  the  de  facto 
jurisdiction  of  the  State  of  New  York;  and  we  should  be  compelled  to 
determine  the  legal  effect  upon  this  mortgage  of  that  de  facto  jurisdic- 
tion. 

We  have  thought  it  as  well,  therefore,  to  take  the  case  as  the  parties 
have  themselves  presented  it,  the  plaintiff  by  the  averments  of  his  com- 
plaint and  the  defendants  by  tlie  admissions  of  their  demurrer,  and 
regard  the  island  in  question  as  having  been  within  the  State  of  New 
York  when  the  mortgage  was  made,  and  afterwards  brought  within 
Lhis  State  by  the  establishment  of  the  boundary  line.  Indeed  as  the 
proceeding  is  in  error  we  cannot  properly  govern  ourselves  by  anything 
".)Ut  the  record  as  it  comes  before  us. 

And  in  treating  the  island  as  within  the  State  of  New  York  when  the 
mortgage  was  made  we  are  regarding  the  contract  and  the  rights  ot 
the  parties  under  it,  precisely  as  they  themselves  understood  them  at 
the  time. 

The  mortgaged  premises  having  been  in  the  State  of  New  York  when 
the  mortgage  was  made,  it  is  of  course  to  be  governed  in  its  construc- 
tion and  effect  by  the  laws  of  that  State  then  in  force.  In  McCormick 
V.  Sullivant,  10  Wheat.  192,  the  court  saj' :  "It  is  an  acknowledged 
principle  of  law  that  the  title  and  disposition  of  real  property  is  exclu- 
sively subject  to  the  laws  of  the  country  where  it  is  situated,  which  can 
alone  prescribe  the  mode  by  which  a  title  to  it  can  pass  from  one  per- 
son to  another."  The  same  doctrine  is  held  in  United  States  v.  Crosby, 
7  Cranch,  115,  Kerr  v.  Moon,  9  Wheat.  565,  Darby  v.  Mayer,  10  id. 
465,  and  in  many  other  cases.  Indeed  the  doctrine  is  unquestioned 
law  everywhere. 

Now,  according  to  the  laws  of  the  State  of  New  York  then  and  still 
in  force,  a  mortgage  of  real  estate  creates  a  mere  chose  in  action,  a 
pledge,  a  security  for  the  debt.  It  conveys  no  title  to  the  property. 
The  claim  of  the  mortgagee  is  a  mere  chattel  interest.  He  has  no  right 
to  the  possession  of  the  property.  The  title  and  seisin  remain  in  the 
mortgagor,  and  he  can  maintain  trespass  and  ejectment  against  the 
mortgagee,  if  he  takes  possession  of  the  property  without  the  consent 
of  the  mortgagor.     This  appears  clearly  from  the  following  cases.  ^ 

It  follows,  therefore,  that  while  tlie  land  in  question  remained  in  the 
State  of  New  York,  it  was  incumbered  by  a  mortgage  of  this  character  ; 

^  The  learned  judge  here  cited  and  discussed  the  following  cases  :  Gardner  v.  Heartt,, 
3  Den.  232  ;  Power  v.  Lester,  23  N.  Y.  527  ;  Triniin  v.  Marsh,  .54  N.  Y.  599  ;  Jackson 
V.  VVilhird,  4  Johns.  42  :  Astor  i;.  Hoyt,  5  Wend.  tj03  ;  Kortriglit  v.  Cady,  21  N.  Y. 
343  ;  Merritt  v.  Bai-tholick,  36  N.  Y.  44.  —  Ed. 


CHAP.  I.]  CHAPPELL  V,    JARDINE,  15 

and  when  it  came  into  this  State  it  bore  with  it  the  same  burden  pre- 
cisel}'.  There  was  nothing  in  the  change  of  jurisdiction  that  could 
affect  the  contract  of  mortgage  that  had  been  made  between  the  parties. 
The  title  to  the  property  continued  to  remain  in  the  mortgagor,  and  it 
remains  in  him  still.  Tliis  is  clear.  The  laws  of  tliis  State  could  not 
make  a  new  contract  for  the  parties  or  add  to  one  already  made.  They 
had  to  take  tlie  contract  as  ihe\'  found  it. 

Now  it  is  clear  tiiat  there  is  no  remedy  by  way  of  foreclosure  known 
to  our  law  which  is  adapted  or  appropriate  to  giving  relief  on  a  mort- 
gage of  this  character.  Our  remedy  is  adapted  to  a  mortgage  deed 
which  convt^ys  the  title  of  the  property  to  the  mortgagee,  and  when  the 
law  day  ha.^  passed,  the  forfeiture,  stated  in  the  deed,  becomes  absolute 
at  law,  and  vests  a  full  and  comj)lete  title  in  the  mortgagee,  with  the 
exception  of  the  equitable  right  of  redemption,  which  still  remains  in 
the  mortgagor.  The  oliject  of  the  decree  of  foreclosure  is,  to  extin- 
guish this  right  ot  redemption  if  the  mortgage  debt  is  not  paid  bj'  a 
speciQed  time.  Tlie  decree  acts  upon  this  right  onh'.  It  conveys 
nothing  to  and  decrees  nothing  in  the  mortgage  if  the  debt  is  not  paid. 
After  the  law  da^'  has  passed  the  right  of  redemption  becomes  a  mere 
cloud  on  the  title  the  mortgagee  then  has,  and  when  it  is  removed  his 
title  becomes  clear  and  perfect.  Phelps  v.  Sage,  2  Day,  151  ;  Roath 
(V.  Smith,  5  Conn.  136 ;  Chamberlin  v.  Thompson,  10  id.  244  ;  Porter 
V.  Seeley,  13  id.  564;  Smith  if.  Vincent,  12  id.  1;  Doton  v.  Russell, 
17  id.  151;  Cross  v.  Robinson,  21  id.  379;  Dudley  v.  Caldwell,  19 
id.  218  ;  Colwell  v.  Warner,  3G  id.  224. 

What  effect  would  such  a  decree  produce  upon  a  mortgage  like  the 
one  under  consideration,  where  the  legal  title  remains  in  the  mortgagor, 
and  nothing  but  a  pledgee's  interest  is  in  the  mortgagee,  even  after  the 
debt  becomes  due?  It  could  onlj'  extinguish  the  right  of  redemption, 
if  it  could  do  that.  It  could  not  give  the  mortgagee  the  right  of  pos- 
session of  tiie  propert}',  for  the  mortgagor  has  still  the  legal  title,  which 
carries  with  it  the  right  of  possession.  It  would  require  another  pro- 
ceeding in  equity,  to  say  the  least,  to  dispossess  him  of  that  title,  and 
vest  it  in  the  mortgagee.  Hence  it  is  clear  that  full  redress  cannot  be 
given  the  plaintiff  in  this  proceeding. 

But  the  plaintiff  has  a  lien  on  the  property  in  the  nature  of  a  pledge 
to  secure  payment  of  the  mortgage  debt.  And  although  our  remedj'  of 
strict  foreclosure  ma}*  not  be  adapted  to  give  redress  to  the  plaintiff 
through  the  medium  of  such  a  lien,  still  a  court  of  equit}'  can  devise  a 
mode  that  will  be  appropriate  ;  for  it  would  be  strange  if  a  lawful  lien 
upon  property  to  secure  a  debt  could  not  be  enforced  according  to  its 
tenor  by  a  court  of  chanceiy.  It  is  said  that  every  wrong  has  its 
remedy ;  so  it  may  be  said  that  every  case  requiring  equitable  relief 
has  its  corresponding  mode  of  redress.  We  have  no  doubt  that  a  court 
of  equity  has  the  power  to  sui^ject  the  property  in  question  to  the  pay- 
ment of  tliis  debt,  upon  a  proper  complaint  adapted  to  the  purpose. 
When  personal  property  is  pledged  to  secure  the  payment  of  a  debt,  it 


16  MORTIMER    V.    NEW    YORK    ELEVATED    RAILROAD    CO.       [CHAP.    I. 

may  be  taken  and  sold,  that  payment  maj-  be  made,  after  giving  the 
pledgor  a  reasonable  opportunity  for  redemption.  So  here,  we  think 
a  similar  course  might  be  taken  with  this  property.  Such  a  course 
would  fall  in  with  the  original  intent  of  the  parties,  and  with  tlie  civil 
code  and  mode  of  procedure  of  the  State  of  New  York.  Modes  of 
redress  in  that  State  have  of  course  no  force  in  this  State,  but  such  a 
mode  of  procedure  seems  to  be  adapted  to  a  case  of  this  character. 

And  we  fm-ther  think  that  on  an  amended  complaint,  setting  forth 
all  the  essential  facts,  and  praying  that  if  there  shall  be  a  default  in  re- 
deeming the  property  during  such  time  as  the  court  shall  allow  for 
redemption,  then  the  right  of  redemption  shall  be  forever  foreclosed, 
and  the  legal  title  and  possession  of  the  property  be  decreed  in  the 
mortgagee,  such  course  might  be  taken. 

We  think  either  of  the  modes  suggested  might  be  pursued  ;  but  inas- 
much as  the  course  which  has  been  taken  leaves  the  legal  title  and  pos- 
session of  the  property  in  the  mortgagor,  we  think  the  court  erred  in 
holding  the  complaint  sufficient,  and  in  passing  the  decree  thereon. 

There  is  error  in  the  judgment  appealed  from,  and  it  is  reversed,  and 
the  case  remanded. 

In  this  opinion  the  other  judges  concurred. 


MORTIMER  V.    NEW   YORK   ELEVATED   RAILROAD   CO. 

Superior  Court  of  the  City  of  New  York.     1889. 
[Reported  6  New  York  Supplement,  898.] 

Freedman,  J.  The  claim  made  in  this  case  b}-  and  on  behalf  of 
the  elevated  railway  companies  is  that  the  absolute  fee  of  the  street 
known  as  the  "Bower}'"  was,  prior  to  the  surrender  of  the  Dutch 
forces  to  the  English  in  1064,  in  the  Dutch  government;  that  such 
fee  thereafter  went  to  the  State  or  to  the  cit}'  of  New  York  so  abso- 
lutely, that  abutting  owners  never  had,  and  do  not  now  have,  any  ease- 
ment of  any  kind  in  said  street,  and  that,  the  elevated  railway  running 
through  the  Bowery  having  been  constructed  with  the  consent  of  both 
the  city  and  the  State,  neither  its  owners  nor  its  lessees  are  liable  for 
any  injury  inflicted  upon  abutting  property  by  reason  of  the  construc- 
tion and  operation  of  the  railway. 

The  claim  of  the  English  that  they  were  the  owners,  b\'  right  of 
discovery,  under  governmental  authority,  of  the  land  of  which  the 
present  city  of  New  York  forms  a  part,  and  that  this  gave  them  such 
exclusive  ownership  that  the  Dutch  government  acquired  no  title  to 
the  land  which  can  be  recognized,  has  been  fully  set  forth  in  the  opin- 
ion of  Judge  TuuAx.  I  concur  in  his  remarks  as  far  as  they  go,  but 
wish  to  add  the  following,  viz.  ;  — • 


,    CHAP.  I.]      MOKTIMEK   V.  NEW   YORK    ELEVATED    RAILROAD   CO.  17 

The  claim  of  the  English,  it  is  true,  has  occasionally  been  criticised 
on  the  iiround  that  neither  of  the  Cabots  landed  in  or  near  New  York, 
or  saw  the  coast  of  New  York.  The  right  of  discovery  is  not  recog- 
nized in  the  Roman  law  unless  followed  by  occupation,  or  unless  the 
intention  of  the  sovereign  or  State  to  take  possession  be  declared  or 
made  known  to  the  world.  And  it  must  be  conceded  that  modern 
diplomatists  and  publicists  incline  to  the  opinion  that  mere  transient 
discovery  amounts  to  nothing  unless  followed  in  a  reasonable  time  by 
occupation  and  settlement,  more  or  less  permanent,  under  the  sanction 
of  the  State.  But  the  question  in  the  case  at  bar  is  not  to  be  decided 
according  to  the  rules  of  the  international  law  of  the  present  time.  It 
is  a  question  purelj-  between  the  public  authorities  of  the  State  of 
N6W  York  and  citizens  of  the  same  State,  and  as  such  it  is  controlled 
by  the  decisions  referred  to  by  Judge  Truax,  to  the  effect  that 
what  the  English  did  do  was  sufficient  to  give  them  title  by  discovery,  " 
and  that  such  title  is  superior  to  the  Indian  title.  These  decisions 
proceeded  upon  the  theory  that  the  claim  of  the  Dutch  was  contested 
by  the  English  from  the  very  start,  not  because  they  questioned  the 
title  given  by  discovery,  but  because  they  insisted  on  being  themselves 
the  rightful  claimants  under  that  title ;  and  that  the  claim  of  the 
English  was  finally  decided  in  their  favor  by  the  sword.  That  being 
so,  it  follows  that,  in  contemplation  of  present  law,  neither  the  Dutch 
nor  the  Roman  law  ever  prevailed  in  tlie  State  of  New  York  de  Jure, 
and  that  the  common  law  of  England  must  be  deemed  to  be  the  origi- 
nal source  of  all  our  law.  And  it  further  follows  that  the  foundations 
of  the  rights  of  owners  of  land  abutting  on  a  street  laid  out  while  the 
Dutch  were  in  possession,  as  against  the  city  or  the  State  of  New  York, 
rest  upon  the  English  common  law,  and  that  they  are  not  to  be  af- 
fected by  the  Dutch  or  Roman  law. 

Reported  cases  in  which  the  validit}-  of  Dutch  grants  was  upheld 
between  individuals  have  no  application  to  the  present  controvers)-. 
Now,  under  the  English  common  law,  the  presumption  is  that  the 
owners  of  lands  13'ing  on  a  highway  are  the  owners  of  the  fee  of  the 
highway  ;  that  the  owners  on  eacli  side  of  the  highwa}'  own  the  soil 
of  the  highway'  in  fee  to  the  centre  of  the  highway  ;  and  that  the  rights 
of  the  public  in  and  to  the  highway  are  no  higher  or  other  than  those 
of  a  mere  easement.  Wager  v.  Railroad  Co.,  25  N.  Y.  529.  This 
presumption  applies  as  well  to  the  streets  of  a  city  as  to  a  country 
highway.  Bissell  v.  Railroad  Co.,  23  N.  Y.  61.  This  presumption 
of  law  is  founded  on  the  supposition  that  the  wa}'  was  originally 
granted  bj'  the  adjoining  owners  in  equal  proportions.  Watrous  y. 
Southworth,  5  Conn.  305.  But  the  presumption  may  be  rebutted  by 
proof  to  the  contrar}-,  and  it  is  rebutted  by  the  production  of  a  deed 
under  which  the  owner  derives  title  grantina:  the  land  to  the  side  of 
the  street  only.  Under  the  operation  of  this  rule,  and  there  being  no 
proof  of  alienation  or  escheat  requiring  a  different  conclusion,  it  must 
be  assumed  in  this  case  that  the  original  grantors  from  whom  plaintiffs' 


18         MORTIMER   V.   NEW   YORK   ELEVATED   RAILROAD    CO.        [CHAP.    L 

title  has  been  derived  owned  the  soil  of  the  Bowery-  in  front  of  the 
premises  in  suit  to  the  centre  of  the  street.  But  even  if  the  title  ot 
the  P^nglish  rested  not  in  discovery,  but  in  conquest,  and  the  English, 
upon  the  surrender  b}-  tlie  Dutch  in  1G64,  acquired  from  the  Dutch  a 
title  to  the  then  existing  streets  as  absolute  as  under  the  Roman  law 
the  title  of  the  government  to  a  militar}'  highway  was,  the  fact  would 
not  improve  the  position  of  the  defendants.  Upon  receiving  such 
title  the  English  could  do  with  it  what  they  pleased.  They  were  not 
bound  to  enforce  it  against  abutting  owners,  as  the  Dutch  government 
might  have  enforced  it:  The  presumption  is  that  they  took  the  title 
and  the  streets  to  be  iield  by  them  according  to  their  own  laws,  and 
as  matter  of  fact  they  thereafter  so  dealt  with  said  streets  as  to  adnnt 
of  no  other  conclusion.  The  province  having  been  granted  by  Charles 
n.  to  his  brother,  the  Duke  of  York,  by  the  charter  of  1664,  several 
months  before  the  surrender  to  Sir  Richard  Nicolls,  the  grant,  in  order 
to  remove  all  doubt  as  to  its  validity,  was  afterwards  confirmed  by  the 
charter  of  1674,  also  granted  to  the  Duke  of  York.  The  object  of 
both  charters  was  to  enable  the  Duke  of  York  to  plant  a  colony  on  this 
continent.  The  charter  of  1664,  issued  nnder  the  great  seal  of  Eng- 
land, contained  a  provision  that  the  statutes,  ordinances,  etc.,  to  be 
established  by  the  Duke  in  the  new  country,  "  should  not  be  contrary 
to,  but  as  nearly  as  might  be  agreeal)le  to,  the  laws,  statutes,  and 
government  of  the  realm  of  England."  This  charter  was,  therefore, 
in  itself,  an  explicit  declaration  of  the  King's  will  that  the  laws  of 
England  should  be  established  in  the  colony,  and  that  the  laws  of  the 
Dutch  settlers  should  not  be  retained.  The  consequence  was  that, 
having  obtained  the  lands,  the  English  held  them,  not  under  the 
Dutch  or  the  civil  law,  but  under  the  common  law  of  their  own  coun- 
try. English  law  governed  English  land,  so  that,  even  if  an  absolute 
title  to  a  street  was  obtained,  the  street  was  ever  thereafter  treated  as 
an  English  street,  under  the  common  law.-^ 

1  The  learned  judge  then  expressed  the  opinion  that  by  subsequent  acts  of  the  Pro- 
prietor and  of  the  State  the  city  lost  its  rights,  if  any,  to  the  legal  fee. 

In  his  concurring  opinion  Truax,  J.,  said  :  "  I  am  of  the  opinion  that  the  fee  of 
the  Bowerj-,  and  of  the  other  streets  in  the  city  of  New  York  that  are  known  as  Dutch 
streets,  never  was  in  the  Dutch  government ;  and  that  it  was,  prior  to  the  Revolution, 
bound  by  the  rules  of  the  common  law,  and  not  by  the  rules  of  the  Dutch  civil  law. 
While  the  Dutch  were  in  actual  possession  this  execution  of  the  common  law  was 
suspended,  just  as,  during  the  late  Rebellion,  this  execution  of  the  laws  of  the  United 
States  could  not  be  enforced  in  some  of  the  southern  States.  But,  said  the  Supreme 
Court  of  the  United  States  in  Ketchum  v.  Buckley,  99  U.  S.  188,  "  the  same  general 
form  of  government,  the  same  general  law  for  the  administration  of  justice  and  the 
protection  of  private  rights  which  had  existed  in  the  States  prior  to  the  Rebellion,  re- 
mained during  its  continuance  and  afterwards." 

See  Kelchuiii  v.  Biu:kleij,  99  U.  S.  188,  and  cases  cited.  —  Ed. 


CHAP.  I.]  MCKENNON    V.    WINN.  19 


McKENNON   v.   WINN. 

Supreme  Court  of  Oklahoma  Territory.     1893. 
[Reported  1  Oklahoma  Reports,  327.] 

BuRFORD,  J.^  The  appellant  filed  his,  complaint  in  the  court  below 
to  enforce  the  specific  performance  of  a  contract  for  the  conveyance  of 
real  estate  situated  in  Oklahoma  City,  Oklahoma  County,  Oklahoma 
Territory'.  A  demurrer  was  filed  to  tiie  complaint,  alleging  as  grounds  : 
First.  That  the  court  has  no  jurisdiction  of  the  person  of  defendant, 
or  the  subject  of  the  action.  Second.  That  the  complaint  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action.  The  demurrer 
was  sustained,  to  which  the  appellant  excepted  and  brings  the  case  to 
this  court  b}-  appeal.   .   .  . 

The  second  ground  for  demurrer  presents  two  questions  :  First.  Can 
a  parol  contract  for  the  conveyance  of  real  estate,  or  an  interest 
therein,  made  after  the  settlement  of  this  country,  and  prior  to  the 
adoption  of  our  organic  act,  be  enforced  ?  Second.  Is  a  contract  for 
the  conveyance  of  real  estate,  entered  into  before  title  is  acquired 
from  the  United  States,  and  to  be  executed  after  title  is  acquired,  void, 
as  against  public  policy? 

The  first  proposition  seems  to  be  settled  by  the  adjudicated  cases 
and  text  writers  in  favor  of  the  appellant.  "  Every  contract,  on  what- 
ever subject,  may  be  in  oral  words,  which  will  have  the  same  efl["ect  as 
if  written,  except  when  some  positive  rule  of  the  common  or  statutory 
law  has  provided  otherwise."  Bish.  Cont.  §  153;  Mallory  v.  Gillett, 
21  N-  Y.  412;  Wyman  v.  Goodrich,  26  Wis.  21  ;  Green  v.  Brookins, 
23  Mich.  48  ;  White  v.  Maynard,  111  INIass.  250.  By  the  common  law, 
prior  to  the  enactment  of  the  statute  of  frauds  (29  Car.  II.  c.  3,  A. 
D.  1676),  contracts  for  the  sale  of  real  estate,  or  an  interest  therein, 
were  not  required  to  be  in  writing.  Bish.  Cont.  §  1231  ;  4  Kent 
Com.  p.  450.  The  English-speaking  people  brought  the  common  law 
to  America  with  them,  in  the  first  settlement  of  the  colonies  ;  and  it 
has  prevailed  in  all  the  States  and  Territories,  modified  b}'  legislative 
acts,  local  conditions,  and  such  of  the  English  statutes  adopted  prior 
to  the  settlement  of  our  colonies  as  were  of  genei'al  application,  and 
suited  to  our  conditions,  except  in  some  portions  where  the  French  or 
civil  law  prevailed.  At  the  time  of  the  settlement  and  discovery  of 
Ameiica  the  statute  of  frauds  had  not  been  adopted,  and  has  only 
become  the  law  of  the  United  States,  or  of  our  several  States  and 
Territories,  by  legislative  enactment. 

This  leads  us  to  the  inquiry,  Did  the  common  law  prevail  in  the 
Territory  in  April,  1889?  It  is  contended  that  prior  to  tlie  settlement 
of  Oklahoma,  and  until  the  same  was  superseded  by  statutory  laws, 

*  Part  of  the  opiuiou  is  omitted.  —  Ed. 


20  McKENNON   V.    WINN.  [CHAP.    I. 

the  Code  Napoleon,  or  civil  law,  prevailed.  Whatever  may  have 
been  the  laws  of  the  countiy  now  known  as  Oklahoma,  the}-  ceased 
to  operate  in  the  region  originally  comprising  the  Indian  Territory 
when  the  Territory  ceased  to  be  a  part  of  the  Territory  of  Louisi- 
ana, and  the  laws  of  the  Territory  of  Indiana  and  the  Territory  of 
Missouri,  which  may  have  once  prevailed  in  said  region,  became 
inoperative  in  and  ceased  to  have  an}-  force  or  effect  in  the  Indian 
Territory,  when  That  Territor}'  ceased  to  be  a  part  of  said  Territories. 
Railroad  Co.  n.  O'Loughlin,  49  Fed.  Rep.  440.  There  was  no  law  in 
the  Indian  Territory  regulating  the  making  of  contracts  at  the  time  of 
the  approval  of  the  Act  of  Congress  establishing  a  United  States  dis- 
trict court  in  said  Territory  by  the  act  of  March  1,  1889.  25  Stat.  783. 
Congress,  with  the  assent  of  the  Indians,  created  the  court  for  the 
whole  of  the  Indian  Territory,  which  included  Oklahoma,  and  con- 
ferred on  it  jurisdiction  in  all  civil  cases  between  citizens  of  the  United 
States  who  are  residents  of  the  Territory,  or  between  citizens  of  the 
United  States  or  of  oiiy  State  or  Territory,  and  an}'  citizen  of,  or  person 
residing  or  found  in,  the  Indian  Territory.  It  gave  the  court  author- 
ity, and  imposed  upon  it  the  duty,  to  apply  the  established  rules  and 
principles  of  the  common  law  to  tiie  adjudication  of  those-  cases  of 
which  it  was  given  jurisdiction.  Pyeatt  v.  Powell,  51  Fed.  Rep.  551. 
But  if  it  be  held  that  the  establishment  of  a  United  States  court  in  the 
Indian  Territory  did  not  put  the  common  law  in  force  in  said  Territory, 
except  in  so  far  as  was  necessary  to  execute  the  powers  of  said  court, 
and  for  the  adjudication  of  such  cases  as  actually  went  into  that  forum, 
then  there  was  no  law  in  Oklahoma,  at  tlie  date  of  its  settlement, 
regulating  the  making  of  contracts.  If  this  should  be  conceded,  then 
it  necessarily  follows,  on  principle,  that  when  people  from  all  parts  of 
the  United  States,  on  the  22d  day  of  April,  1889,  settled  the  country 
known  as  Oklahoma,  built  cities,  towns,  and  villages,  and  began  to 
carry  on  trade  and  commerce  in  all  its  various  branches,  they  brought 
into  Oklahoma,  with  them,  the  estabhshed  principles  and  rules  of  the 
common  law,  as  recognized  and  promulgated  by  the  American  courts, 
and  as  it  existed  when  imported  into  this  country  by  our  early  settlers, 
and  unmodified  by  American  or  English  statutes.  So  that,  in  any 
event,  the  common  law  prevailed  in  Oklahoma  at  the  time  the  con- 
tract between  the  appellant  and  appellee  was  entered  into  ;  and  as,  at 
common  law,  contracts  for  the  sale  and  conveyance  of  real  estate  were 
not  required  to  be  in  writing,  the  contract  mentioned  in  the  complaint 
may  be  enfoi'ced,  unless  void  for  other  reasons.^ 

1  The  contract  was  lielJ  not  to  be  void  on  the  Erround  alleged:  the  court  followed 
on  this  point  Lamb  v.  Davenport,  18  Wall.  307.  —  Ed. 


CHAP.    I.]  LAWTON    V.    STEELE.  21 

LAWTON  V.   STEELE. 

Court  of  Appeals,  New  York,  1890. 
[Reported  119  A'.   Y.  226.] 

This  action  was  brought  to  recover  the  value  of  sixteen  hoop  or 
fyke  nets  belonging  to  plaintiffs,  which  were  destroyed  by  defendant. 

Andrews,  J.  The  point  of  difference  between  the  trial  court  and 
the  General  Term  relates  to  the  constitutionality  of  the  second  section 
of  the  Act  of  1880,  as  amended  in  1883.^  That  section  is  as  follows: 
"  Sec.  2.  Any  net  found,  or  other  means  or  device  for  taking  or  capturing 
fish,  or  whereby  they  may  be  taken  or  captured,  set,  put,  floated,  had, 
found  or  maintained  in  or  upon  any  of  the  waters  of  this  state,  or  upon 
the  shores  or  islands  in  any  waters  of  this  state,  in  violation  of  any  exist- 
ing or  hereafter  enacted  statutes  or  laws  for  the  protection  of  fish, 
is  hereby  declared  to  be,  and  is  a  public  nuisance,  and  may  be  abated 
and  summarily  destroyed  by  any  person,  and  it  shall  be  the  duty 
of  each  and  every  (game  and  fish)  protector  aforesaid  and  of  every 
game  constable,  to  seize  and  remove  and  destroy  the  same,  .  .  .  and 
no  action  for  damages  shall  be  maintained  against  any  person  for  or 
on  account  of  any  such  seizure  or  destruction."  The  defendant  justi- 
fied the  seizure  and  destruction  of  the  nets  of  plaintiff,  as  a  game 
protector,  under  this  statute,  and  established  the  justification,  if  the 
legislature  had  the  constitutional  power  to  authorize  the  summary 
remedy  pro\'ided  by  the  section  in  question.  The  trial  judge  held 
the  act  in  this  respect  to  be  unconstitutional,  and  ordered  judgment 
in  favor  of  the  plaintiff's  for  the  value  of  the  nets.  The  General  Term 
sustained  the  constitutionality  of  the  statute  and  reversed  the  judg- 
ment. We  conciu*  with  the  General  Term  for  reasons  which  will  now 
be   stated. 

The  legislative  power  of  the  state  which  by  the  Constitution  is 
vested  in  the  senate  and  assembly  (§  1,  art.  3),  covers  every  subject 
which  in  the  distribution  of  the  powers  of  government  between  the 
legislative,  executive  and  judicial  departments,  belongs  by  practice 
or  usage,  in  England  or  in  this  country,  to  the  legislative  department, 
except  in  so  far  as  such  power  has  been  withheld  or  limited  by  the 
Constitution  itself,  and  subject  also  to  such  restrictions  upon  its  ex- 
ercise as  may  be  found  in  the  Constitution  of  the  United  States. 
From  this  grant  of  legislative  power  springs  the  right  of  the  legislature 
to  enact  a  criminal  code,  to  define  what  acts  shall  constitute  a  criminal 
offense,  what  penalty  shall  be  inflicted  upon  offenders,  and  generally 
to  enact  all  laws  which  the  legislature  shall  deem  expedient  for  the 
protection  of  public  and  private  rights,  and  the  prevention  and  pun- 
ishment _of  public  wrongs.     The  legislature  may  not  declare  that  to 

^  Only  so  much  of  the  case  as  relates  to  the  power  to  enact  a  statute  is  printed. — Ed. 


22      LEE    V.  BUDE    AND   TORRINGTON   JUNCTION    RAILWAY.       [ciTAr.   L 

be  a  crime  which  in  its  nature  is  and  must  be  under  all  circumstances 
innocent,  nor  can  it  in  defining  crimes,  or  in  declaring  their  punish- 
ment, take  away  or  impair  any  inalienable  right  secured  by  the  Con- 
stitution. But  it  may,  acting  within  these  limits,  make  acts  criminal 
which  before  were  innocent,  and  ordain  pimishment  in  future  cases 
where  before  none  could  have  been  inflicted.  This,  in  its  nature,  is 
a  legislative  power,  which,  by  the  Constitution  of  the  state,  is  com- 
mitted to  the  discretion  of  the  legislative  body.  (Barker  v.  People, 
3  Cow.  686;  People  v.  West,  106  N.  Y.  293.)  The  act  in  question  de- 
clares that  nets  set  in  certain  waters  are  public  nuisances,  and  author- 
izes their  summary  destruction.  The  statute  declares  and  defines 
a  new  species  of  public  nuisance,  not  known  to  the  common  law ,  nor 
declared  to  be  such  by  any  prior  statute.  But  we  know  of  no  limi- 
tation of  legislative  power  which  precludes  the  legislature  from  en- 
larging the  category  of  public  nuisances,  or  from  declaring  places  or 
property  used  to  the  detriment  of  public  interests  or  to  the  injury  of 
the  health,  morals  or  welfare  of  the  community,  public  nuisances, 
although  not  such  at  common  law.  There  are,  of  course,  limitations 
upon  the  exercise  of  this  power.  The  legislature  cannot  use  it  as 
a  cover  for  withdrawing  property  from  the  protection  of  the  law,  or 
arliitrarily,  where  no  public  right  or  interest  is  involved,  declare 
property  a  jiuisance  for  the  purpose  of  devoting  it  to  destruction. 
If  the  court  can  judicially  see  that  the  statute  is  a  mere  evasion,  or 
was  framed  for  the  purpose  of  indi\idual  oppression,  it  will  set  it  aside 
as  unconstitutional,  but  not  otherwise.  {In  re  Jacobs,  98  N.  Y.  98; 
Mugler  v.  Kansas,  123  U.  S.  661.) 


LEE    I'.    BUDE   AND   TORRINGTON   JUNCTION    RAILWAY. 

Court  of  Common  Pleas,  1871. 

[Reported  L.  R.  6  C.  P.  576.] 

WiLLES,  J.^  This  is  an  application  for  a  writ  of  sci.  fa.  to  try  the 
question  whether  two  persons  as  shareholders  in  the  Bude  and  Tor- 
rington  Junction  Railway  Company  are  bound  to  pay  to  the  plaintiffs 
so  much  as  may  remain  unpaid  upon  their  respective  shares,  in  dis- 
charge of  a  debt  in  respect  of  which  the  plaintiffs  have  obtained  a 
judgment  against  the  company  pursuant  to  8  &  9  Vict.  c.  16,  s.  36.  .  .  . 

It  is  further  urged  that  the  company  was  a  mere  nonentity,  and 
there  never  were  any  shares  or  shareholders.  That  resolves  itself 
into  this,  that  parliament  was  induced  by  fraudulent  recitals  (intro- 
duced, it  is  said,  by  the  plaintiffs,)  to  pass  the  Act  which  formed  the 
company.  I  would  observe,  as  to  these  Acts  of  Parliament,  that 
thev  are  the  law  of  this  land;  and  we  do  not  sit  here  as  a  court  of 

'   Part  of  the  opinion  only  is  given.  —  Ed. 


CHAP.  I.]  STATE    V.    KNIGHT.  23 

appeal  from  parliament.  It  was  once  said,  —  I  think  in  Hobart 
—  that,  if  an  Act  of  Parliament  were  to  create  a  man  judge  in  his 
own  case,  the  Court  might  disregard  it.  That  dictum,  however, 
stands  as  a  warning,  rather  than  an  authority  to  be  followed.  We 
sit  here  as  servants  of  the  Queen  and  the  legislature.  Are  we  to  act 
as  regents  over  what  is  done  by  parliament  with  the  consent  of  the 
Queen,  lords,  and  commons?  I  deny  that  any  such  authority  exists. 
If  an  Act  of  Parliament  has  been  obtained  improperly,  it  is  for  the 
legislature  to  correct  it  by  repealing  it;  but,  so  long  as  it  exists  as  law, 
the  Courts  are  bound  to  obey  it.  The  proceedings  here  are  judicial, 
not  autocratic,  which  they  would  be  if  we  could  make  laws  instead 
of  administering  them.  The  Act  of  Parliament  makes  these  persons 
shareholders,  or  it  does  not.  If  it  does,  there  is  an  end  of  the  question. 
If  it  does  not,  that  is  a  matter  which  may  be  raised  by  plea  to  the  sci. 
fa.  Having  neglected  to  take  the  proper  steps  at  the  proper  time  to 
prevent  the  Act  from  passing  into  a  law,  it  is  too  late  now  to  raise 
any  objections   to  it. 


STATE   V.  KNIGHT. 
Superior  Colrt  of  North  Carolina.     1799. 

[Reported  2  Ilaijwood,  109.] 

He  was  indicted  of  passing  counterfeit  bills  of  credit,  of  the  likeness 
of  the  genuine  bills  of  credit  of  this  state,  in  Virginia.  The  indictment 
was  drawn  upon  the  Act  of  1784,  c.  2.5,  §  4  :  "•  And  whereas  tliere  is 
reason  to  apprehend  that  wicked  and  ill-disposed  persons  resident  in 
tlie  neighboring  states  make  a  practice  of  counterfeiting  tlie  current 
bills  of  credit  of  this  state,  and  by  themselves  or  emissaries  utter  or 
vend  the  same  with  an  intention  to  defraud  the  citizens  of  this  state  : 
Be  it  tlierefore  enacted  tliat  all  such  persons  shall  be  subject  to  the 
same  mode  of  trial,  and  on  conviction  liable  to  the  same  pains  and 
penalties,  as  if  the  offence  had  been  committed  within  the  limits  of  this 
state,  and  be  prosecuted  in  the  Superior  Court  of  any  district  within 
this  state."     And  he  was  convicted. 

Per  curiam.  This  state  cannot  declare  that  an  act  done  in  Virginia 
b}'^  a  citizen  of  Virginia  shall  be  criminal  and  punishable  in  this  state. 
Our  penal  laws  can  only  extend  to  the  limits  of  this  State,  except  as  to 
our  own  citizens.  But  granting  that  our  Legislature  could  enact  laws 
for  the  punishment  of  offences  committed  in  Virginia,  still  this  clause 
only  extends  by  implication  to  acts  done  in  Virginia ;  and  no  penal 
law  can  be  construed  by  implication,  nor  otherwise  than  by  the  express 
letter. 

He  was  discharged.' 

1  Ace.  People  v.  Merrill,  2  Park,  590.  —  Ed. 


24  HANKS  V.    STATE.  [CHAP.  L- 

HANKS   V.  STATE. 

Court  of  Appeals  of  Texas.     1882. 

[Reported  13  Tex.  App.  289.] 

White,  P.  J.  There  is  but  a  single  question  wliich  we  think  is  in- 
volved in  and  requires  discussion  on  this  appeal. 

Appellant  and  one  P.  Dillman  were  jointly  indicted  in  the  District 
Court  of  Travis  County  for  the  forgery  of  a  transfer  of  a  land  certificate 
for  a  league  and  labor  of  land  in  the  State  of  Texas.  It  is  alleged  in 
the  indictment  that  the  acts  constituting  the  forgery  were  all  committed 
in  Caddo  parish,  in  the  State  of  Louisiana.  No  act  or  thing  Connected 
with  the  execution  of  the  forger}-  is  charged  to  have  been  done  in 
Texas  ;  but  the  crime  and  injury,  so  far  as  this  State  is  concerned,  are 
averred  to  consist  in  the  fact  that  the  said  forgery  in  Louisiana  '"did 
then  and  there  relate  to  and  affect  an  interest  in  land  in  the  State 
of  Texas,  .  .  .  and  would,  if  the  same  were  true  and  genuine,  have 
transferred  and  affected  certain  property,  to  wit,  a  certain  land  certifi- 
cate, number  222,  for  one  league  and  labor  of  land  in  the  State  of 
Texas,"  etc. 

This  indictment  was  brought  under  Article  451  of  the  Penal  Code. 

B}-  Article  454  of  the  Code  it  is  declared  that  "persons  out  'of  the 
State  may  commit  and  be  liable  to  indictment  and  conviction  for  com- 
mitting anv  of  the  offences  enumerated  in  this  chapter  which  do  not 
in  their  commission  necessarily  require  a  personal  presence  in  this 
State,  the  object  of  this  chapter  being  to  reach  and  punish  all  persons 
oflJending  against  its  provisions,  whether  within  or  without  this  State," 
etc. 

It  was  made  a  ground  both  in  the  motion  to  quash  the  indictment 
and  in  arrest  of  judgment,  and  is  again  ui'gentl}'  insisted  upon  in  the 
able  brief  of  counsel  for  appellant,  that  the  facts  alleged,  if  true,  would 
constitute  an  offence  against  the  sovereign  State  of  Louisiana  alone, 
and  one  of  which  the  courts  of  this  State  would  have  no  jurisdiction. 

If  the  position  thus  assumed  in  behalf  of  appellant  be  correct,  then 
the  Legislature  had  no  authority  to  pass  the  act  quoted,  and  the  same 
is  an  absolute  nullity.  Can  this  proposition  be  maintained?  It  cer- 
tainh'  cannot  be  found  in  any  constitutional  inhibition,  State  or  Federal, 
depriving  the  Legislature  of  the  authority,  and  unless  there  is  some 
authority  of  law  superior  to  the  right  of  a  State  Legislature,  which 
could  and  should  control  the  action  of  the  latter  within  the  scope  of  its 
constitutional  powers,  we  cannot  well  conceive  how  its  enactments,  if 
reasonable  and  consistent  with  that  power,  could  be  held  inoperative 
and  nugatory. 

Two  authorities,  which  are  to  the  effect  that  "  the  Legislature  of  one 
State  cannot  define  and  punislf  crimes  committed  in  another  State,"  are 
mainly  relied  upon.  The  leading  one  is  the  case  of  the  State  v.  Knight, 
taken  from  2  Ha3'wood,  and  reported  in  Taylor's  North  Carolina  Re- 


CHAP.  I.]  HANKS    V.    STATE.  25 

ports,  page  44.  The  other  is  People  i\  Merrill,  2  Park's  Criminal 
ReiDorts,  590.  The  defendant  in  the  first  case  was  indicted  under  a 
statute  the  words  of  which  were :  "  And  wliereas  there  is  reason  to 
apprehend  that  wicked  and  ill  disposed  persons  resident  in  the  neigh- 
boring States  make  a  practice  of  counterfeiting  the  current  bills  of 
credit  of  this  State,  and  In'  themselves  or  emissaries  utter  or  vend  the 
same,  with  an  intention  to  defraud  the  citizens  of  this  State :  Be  it 
enacted,  etc.,  that  all  such  persons  shall  be  subject  to  the  same  mode 
of  trial,  and  on  conviction  liable  to  the  same  pains  and  penalties  a,s  if 
the  offence  had  been  committed  within  the  limits  of  this  State  and 
prosecuted  in  the  superior  court  of  an}-  district  of  this  State."  It  was 
held  that  the  jurisdiction  to  ivy  in  North  Carolina  was  doubtful,  and 
the  prisoner  was  discharged. 

Mr.  Wharton,  in  his  work  on  the  Conflict  of  Laws,  sa^s :  "  The 
sturdiest  advocates  of  the  hypothesis  that  the  locus  delicti  alone  confers 
jurisdiction  have  admitted  that  there  are  cases  in  wliich  a  person  whose 
residence  is  outside  the  territor}'  may  make  himself,  by  conspiring  extra- 
territorially  to  defeat  its  laws,  infra-territorially  responsible.  If,  for 
instance,  a  forger  should  establish  on  the  Mexican  side  of  the  boundary 
between  the  United  States  and  Mexico  a  manufactory  for  the  forgery 
of  United  States  securities,  for  us  to  hold  that  when  the  mischief  is 
done  he  can  take  up  his  residence  in  the  United  States  without  even 
liability  to  arrest,  would  not  merely  expose  our  government  to  spolia- 
tion, but  bring  its  authority  into  contempt.  To  sa}'  that  in  such  a  ease 
the  Mexican  government  can  be  relied  upon  to  punish  is  no  answer  ; 
because,  first,  in  countries  of  such  imperfect  civilization,  penal  justice 
is  uncertain  ;  secondh',  in  cases  where,  in  such  countr},  the  local  com- 
munity gains  greath'  by  the  fraud  and  suffers  by  it  no  loss,  the  chances 
of  conviction  and  punishment  would  be  peculiarly  slight ;  and,  thirdly, 
because  all  that  the  offender  would  have  to  do  to  escape  justice  in  such 
a  case  would  be  to  walk  over  the  boundary  line  into  the  United  States, 
where  on  this  hypothesis  he  would  go  free."  (Whart.  Conflict  of  Laws, 
sec.  876.)  Again  he  says  :  "•  Thus  it  has  been  held  that  the  originator 
of  a  nuisance  to  a  stream  in  one  country  which  affects  such  stream  in 
another  country  is  liable  to  prosecution  in  the  latter  country ;  that  the 
author  of  a  libel  uttered  by  him  in  one  countrj-  and  published  In'  others 
in  another  country'  from  which  he  is  absent  at  the  time,  is  liable  in  the 
latter  country;  that  he  who  on  one  side  of  a  boundary  shoots  a  person 
on  the  other  side  is  amenable  in  the  country  where  the  blow  is  received ; 
that  he  who  in  one  State  employs  an  innocent  agent  to  obtain  goods  bv 
false  pretenses  in  another  State  is  amenable  in  the  latter  State  ;  and 
that  he  who  sells  through  agents,  guilty  or  innocent,  lottery'  tickets  in 
another  State  is  amenable  in  the  State  of  the  sale,  though  he  was  absent 
from  such  State  personally.  In  England  we  have  the  same  principle 
aflSrmed  by  the  highest  judicial  authority."  And  he  quotes  Lord  Camp- 
bell as  saying,  •"•  that  a  person  ma}',  b\-  the  employment  as  well  of  a 
conscious  as  of  an  unconscious  agent,  render  himself  amenable  to  the 


26  HANKS    V.    STATE.  [CHAP.    I. 

law  of  England  when  he  comes  within  the  jurisdiction  of  our  courts  ;  " 
and  Sir  R.  Phillimore  as  saying,  "  It  is  a  monstrous  thing  that  any 
technical  rule  of  venue  should  prevent  justice  from  being  done  in  this 
country  on  a  criminal  for  an  offence  which  was  perpetrated  here  but  the 
execution  of  which  was  concocted  in  another  country."  (Whart.  Con- 
flict of  Laws,  sec.  877.  See  also  Adams  r.  People,  1  Comstock  N.  Y. 
173;  Commonwealth  <>.  McLoon,  101  Mass.  1;  Ham  v.  State,  4  Texas 
Ct.  App.  645;  Rogers  v.  The  State,  10  Texas  Ct.  App.  655.) 

Mr.  Cooley,  in  iiis  great  work  on  Constitutional  Limitations,  treating 
of  territorial  limitation  to  legislative  authority,  says:  "The  legislative 
authority  of  every  State  must  spend  its  force  within  the  territorial 
limits  of  the  State.  .  .  .  It  cannot  provide  for  the  punishment  as  crimes 
of  acts  committed  beyond  the  State  boundar}',  because  such  acts,  if 
offences  at  all,  must  be  offences  against  the  sovereignty  within  whose 
Jimits  they  have  been  done."  But,  after  laying  down  this  doctrine,  in 
the  very  next  sentence  he  says:  "  But  if  the  consequences  of  an  un- 
lawful act  committed  outside  the  State  have  reached  their  ultimate  and 
injurious  result  within  it,  it  seems  that  the  perpetrator  may  be  pun- 
ished as  an  offender  against  such  State."  (Cooley's  Const.  Lim.,  4  ed., 
pp.  154-55.)  If  this  latter  rule  be  the  law,  then  it  is  a  solecism  to  say 
that  the  legislature  cannot  so  declare  it  by  express  enactment. 

Story,  in  his  (Conflict  of  Laws,  says:  "  Althougli  the  penal  laws  of 
every  country  are  in  their  nature  local,  yet  an  offence  may  be  com- 
mitted in  one  sovereignty  in  violation  of  the  laws  of  another,  and  if  the 
offender  be  afterwards  found  in  the  latter  State,  he  may  be  punished 
according  to  the  laws  thereof,  and  the  fact  tliat  he  owes  allegiance  to 
another  sovereignly  is  no  bar  to  the  indictment."  (Stor}'  on  the  Con- 
flict of  Laws,  4  ed.,  section  6256.) 

The  offence  charged  in  the  indictment  against  appellant  comes  clearlj- 
within  the  terms  of  Article  454  of  the  Penal  Code.  Had  it  been  com- 
mitted by  one  of  our  own  citizens  within  this  State,  there  then  could 
be  no  question  as  to  his  liability.  Here,  the  defendant  in  effect 
says:  "  You  ma}'  try  and  convict  your  own  citizens  for  the  same  act 
I  have  committed,  but  you  cannot  try  and  punish  me,  because  what  I 
liave  done,  though  equally  as  violative  of  the  spirit  and  letter  of  the 
law,  is  still  not  triable  in  your  court  because  it  was  committed  in  another 
State,  and  your  Legislature  could  not  pass  a  law  which  could  embrace 
nie  within  its  pains  and  penalties."  We  can  see  no  valid  reason  why 
the  Legislature  of  the  State  of  Texas  could  not  assert,  as  it  has  done  in 
Article  454  svpra,  her  jurisdiction  over  wrongs  and  crimes  with  regard 
to  the  land  titles  of  the  State,  no  matter  whether  the  perpetrator  of  the 
crime  was  at  the  time  of  its  consummation  within  or  without  her  terri- 
torial limits.  Such  acts  are  offences  against  the  State  of  Texas  and 
her  citizens  only,  and  can  properly  be  tried  only  in  her  courts.  It  may 
in  fact  be  no  crime  against  the  State  in  which  it  is  perj)etrated  ;  and  if 
it  is,  under  such  circumstances  as  we  are  considering,  that  other  State 
would  have  no  interest  in  punishing  it,  and  would  rarely  if  ever  do  so. 


CHAP.  I.]  HANKS    V.    STATE.  27 

When  this  forgery  was  committed  in  Louisiana,  eo  instanti  a  crime  was 
committed  against,  and  injur}-  done  to,  the  State  of  Texas,  because  it 
affected  title  t6  lands  within  her  sovereignt}'. 

Our  conclusion  is  that  the  Legislature  had  authority  to  adopt  the  act 
in  question  ;  that  the  same  is  in  violation  of  no  law  superior  thereto  ; 
and  that  the  jurisdiction  thereby  conferred  can  be  rightly  exercised  by 
the  courts  of  this  State.  The  defendant  appears  to  us  to  come  clearh' 
witiiin  the  scope  of  that  jurisdiction.  He  has  been,  as  far  as  we  can 
see,  fairly  and  impartially  tried  under  the  law,  and  legally  convicted 
according  to  the  evidence  exhibited  in  the  record.  We  have  found  no 
error  for  which  a  reversal  of  the  judgment  should  be  had,  and  it  is 
therefore  affirmed.  Ajfirmed. 

Hurt,  J.,  dissents  upon  the  ground  that  the  Legislature  bad  no 
authority  to  pass  Article  454,  Penal  Code. 


Lamar,  J.,  in  Lake  County  v.  Rollins,  130  U.  S.  662  (1889).  .  .  . 
We  are  unable  to  adopt  the  constructive  interpolations  ingeniously 
offered  by  counsel  for  defendant  in  error.  Why  not  assume  that 
the  framers  of  the  constitution,  and  the  people  who  voted  it  into 
existence,  meant  exactly  what  it  says?  At  the  first  glance,  its  read- 
ing produces  no  impression  of  doubt  as  to  the  meaning.  It  seems  all 
sufficiently  plain;  and  in  such  case  there  is  a  well-settled  rule  which 
we  must  observe.  The  object  of  construction,  applied  to  a  constitu- 
tion, is  to  give  effect  to  the  intent  of  its  framers,  and  of  the  people 
in  adopting  it.  This  intent  is  to  be  found  in  the  instrument  itself;  and 
when  the  text  of  a  constitutional  provision  is  not  ambiguous,  the 
courts,  in  giving  construction  thereto,  are  not  at  liberty  to  search 
for  its  meaning  beyond  the  instrument. 

To  get  at  the  thought  or  meaning  expressed  in  a  statute,  a  con- 
tract or  a  constitution,  the  first  resort,  in  all  cases,  is  to  the  natural 
signification  of  the  words,  in  the  order  of  grammatical  arrangement 
in  which  the  framers  of  the  instrument  have  placed  them.  If  the 
words  convey  a  definite  meaning  which  involves  no  absurdity,  nor  any 
contradiction  of  other  parts  of  the  instrument,  then  that  meaning,  ap- 
parent on  the  face  of  the  instrument,  must  be  accepted,  and  neither  the 
courts  nor  the  legislature  have  the  right  to  add  to  it  or  take  from  it. 
Newell  V.  People,  7  N.  Y.  9,  97;  Hills  v.  Chicago,  60  Illinois,  86;  Denn 
V.  Reid,  10  Pet.  524;  Leonard  i\  Wiseman,  31  Maryland,  201,  204; 
People  ('.  Potter,  47  N.  Y.  375;  Cooley  Const.  Lim.  57;  Story  on  Const. 
§400;  Beardstown  r.  Virginia,  76  Illinois,  34.  So,  also,  where  a  law 
is  expressed  in  plain  and  unambiguous  terms,  whether  those  terms 
are  general  or  limited,  the  legislature  should  be  intended  to  mean 
what  they  have  plainly  expressed,  and  consequently  no  room  is  left 
for  construction.  Ignited  States  v.  Fisher,  2  Crunch,  358,  399;  Dotrgett 
V.  Florida  Railroad,  99  i:.  S.  72. 


28  COMMONWEALTH    V.    CHURCHILL.  [CHAP,  I. 

Miller,  J.,  in  People  r.  Laeombe,  99  N.  Y.  43  (1885).  ...  In  the 
interpretation  of  statutes,  the  great  principle  which  is  to  control  is  the 
intention  of  the  legislature  in  passing  the  same,  which  intention  is 
to  be  ascertained  from  the  cause  or  necessity  of  making  the  statute 
as  well  as  other  circumstances.  A  strict  and  literal  interpretation  is 
not  always  to  be  adhered  to,  and  where  the  case  is  brought  within  the 
intention  of  the  makers  of  the  statute,  it  is  within  the  statute,  al- 
though by  a  technical  interpretation  it  is  not  within  its  letter.  It 
is  the  spirit  and  purpose  of  a  statute  which  are  to  be  regarded  in  its 
interpretation;  and  if  these  find  fair  expression  in  the  statute,  it  should 
be  so  construed  as  to  carry  out  the  legislative  intent,  even  although 
such  construction  is  contrary  to  the  literal  meaning  of  some  provisions 
of  the  statute.  A  reasonable  construction  should  be  adopted  in  all 
cases  where  there  is  a  doubt  or  uncertainty  in  regard  to  the  intention 
of  the  lawmakers.  These  general  rules  are  upheld  by  numerous  au- 
thorities. (People,  ex  rel.  23d  Street  R.  R.  Co.  v.  Commissioners  of 
Taxes,  95  N.  Y.  558;  Burch  v.  Newbury,  10  id.  389;  Oswego  Starch 
Factory  v.  Dolloway,  21  id.  461;  People  i\'n.  Y.  C.  R.  R.  Co.,  13  id.  78; 
Donaldson  v.  Wood,  22  Wend.  397;  Watervliet  T.  Co.  v.  McKean,  6 
Hill,  619;  3  Bingham,  193;  Commonwealth  v.  Kimball,  24  Pick.  370.) 
W'hile  the  rules  stated  are  specially  applicable  in  considering  the 
phraseology  of  statutes,  they  may  also  be  properly  invoked  where 
several  statutes  are  passed  relating  to  the  same  general  subject.  In 
Commonwealth  v.  Kimball  (supra),  it  is  said  by  Shaw,  C.  J.,  that 
"where  any  particular  construction  would  lead  to  an  absurd  conse- 
quence, it  will  be  presumed  that  some  exception  or  qualification  w^as 
intended  by  the  legislature  to  avoid  such  conclusion."  Where  it 
is  apparent  that  a  strict  construction  of  a  statute  would  defeat  the 
main  purpose  and  object,  not  only  of  the  statute,  but  of  other  legisla- 
tive enactments  which  relate  to  the  same  subject,  and  which  have 
been  enacted  in  pursuance  of  and  according  to  a  general  purpose  of 
accomplishing  a  particular  result,  such  interpretation  should  not 
be  upheld,  as  it  would  be  absurd  ti  say  that  the  lawmakers  designed 
to  secure  a  result  which  would  be  antagonistic  to  their  plain  and  clear 
intention. 


COMMONWEALTH   v.    CHURCHILL. 
SuPKEME  Judicial  Court  of  Massachusetts.     1840. 

[Reported  2  Met.  118.] 

At  the  last  September  term  of  the  Court  of  Common  Pleas,  the  de- 
fendant was  convicted  on  four  counts  in  an  indictment,  the  first  of 
which  alleged  that  he,  "  at  Stoughton  in  said  County  of  Norfolk,  on  the 


CHAP.  I.J  COMMONWEALTH    V.  GHUKCHILL.  29 

1 6th  day  of  March  last  past,  did  sell  to  one one  glass  of  brandy 

to  be  by  him,  the  said ,  then  and  there  used,  consumed,  and  drank 

ill  tlie  dwelling-house  there  situate  of  him  the  said  Samuel,  he  the  said 
Samuel  not  being  then  and  there  duly  licensed,  according  to  law,  to  be 
an  innholder  or  common  victualler;  against  the  peace,  etc.,  and  con- 
trary to  the  statute  in  such  case  made  and  provided."  There  were  five 
other  counts  similar  to  the  first,  except  that  diflerent  kinds  of  spirituous 
liquor  were  alleged  to  have  been  sold  to  five  different  persons  on  sev- 
eral different  days,  to  wit,  on  the  17th,  18th,  19th,  20th,  and  21st  of 
March,  1840.     On  two  of  the  counts  the  defendant  was  acquitted. 

The  defendant  filed  exceptions  to  the  ruling  of  Strong,  J.,  before 
whom  the  trial  was  had:  "  1.  Because  the  court  instructed  the  jurv 
that  the  2d  and  3d  sections  of  c.  47  of  the  Revised  Statutes,  on  which 
the  indictment  is  founded,  are  binding  and  valid,  when  the  defendant 
contends  that  they  are  unconstitutional  and  void.  2.  Because  the 
court  instructed  the  jur}-  that  those  sections  were  still  in  force  as  law, 
when  the  defendant  contends  that  they  are  repealed  by  subsequent 
legislative  enactments."  ^ 

Shaw,  C.  J.  It  appears  b^'  the  record  that  the  defendant  was  in- 
dicted for  selling  spirituous  liquors  without  license,  on  the  16th  dav  of 
March  last,  and  at  several  times  afterwards,  and  that  upon  a  trial  of 
the  indictment,  in  the  Court  of  Common  Pleas,  he  was  convicted.  Two 
exceptions  were  taken  to  the  directions  and  opinion  of  that  court  in 
matter  of  law,  upon  which  the  case  has  been  brought  before  this  court, 
pursuant  to  the  statute.  These  exceptions  were  as  follows:  1.  That 
the  2d  and  3d  sections  of  the  47th  chapter  of  the  Revised  Statutes, 
upon  which  this  prosecution  is  founded,  are  unconstitutional  and  void. 
2.  Because  the  court  instructed  the  jury  that  these  sections  were  in 
force  as  law,  at  the' time  when  the  acts  charged  as  offences  were  alleged 
to  be  done  ;  whereas  the  defendant  contended  that  they  were  repealed 
by  a  subsequent  act  of  the  legislature.  Upon  the  first  no  argument  has 
been  offered,  and  it  does  not  seem  to  be  insisted  on.  The  second  de- 
pends upon  the  question  wiiether  the  statute  of  1840,  c.  1,  passed  on 
the  11th  of  February-,  1840,  and  which  went  into  operation  in  thirty 
days  from  its  passage,  to  wit,  13th  March,  1840,  simply  repealing  the 
statute  of  1838,  c.  157,  did,  by  its  legal  operation,  revive  the  2d  and 
3d  sections  of  the  47th  chapter  of  the  Revised  Statutes.  If  it  did,  the 
case  of  the  defendant  was  within  them,  the  acts  all  beins^  charged  to 
have  been  done  after  the  13th  of  March  last,  and  the  acts  themselves 
being  made  punishable  b}'  those  provisions  of  the  Revised  Statutes. 

It  is  conceded  to  be  a  maxim  of  the  common  law,  applicable  to  the 
construction  of  statutes,  that  the  simple  repeal  of  a  repealing  law,  not 
substituting  other  provisions  in  place  of  those  repealed,  revives  the 
pre-existing  law.  As  a  maxim  of  the  common  law,  it  was  in  force  here 
when  the  Constitution  of  the  Commonwealth  was  adopted.     By  that 

1  The  arguments  of  counsel  and  part  of  the  opinion  are  omitted. 


oO  COMMONWEALTH    V.    CHURCHILL.  [CHAP.  L 

Constitution  it  was  declared  that  "  all  the  laws,  which  have  heretofore 
been  ailopted,  used,  and  approved  in  the  colony,  province,  or  btate  of 
Massachusetts  Bay,  and  usuall}'  practised  on  in  the  courts  of  law,  shall 
still  remain  and  be  in  full  force,  until  altered  or  repealed  b}'  the  legis- 
lature ;  such  parts  only  excepyted  as  are  re^jugnant  to  the  rights  and 
liberties  contained  in  this  Constitution."  This  Constitution  has  been 
construed  as  adopting  the  great  bod}'  of  the  connnon  law,  with  those 
statutes  made  before  the  emigration  of  our  ancestors,  which  were  made 
in  amendment  of  the  common  law,  so  far  as  these  rules  and  principles 
were  applicable  to  our  condition  and  form  of  government.  Common- 
wealth V.  Leach,  1  Mass.  59.  Commonwealth  v.  Knowiton,  2  Mass. 
534. 

But  it  was  contended,  at  the  argument,  that  under  this  provision  no 
principle  or  rule  of  the  common  law  could  be  regarded  as  adopted,  un- 
less it  could  be  shown  affirmatively  that  it  had  been  adjudicated  before 
the  Revolution.  But  we  apprehend  this  would  be  much  too  narrow  a 
construction.  Before  the  Revolution,  we  had  no  regular  reports  of 
judicial  decisions  ;  and  the  most  familiar  rules  and  principles  of  law  — 
those  which  lie  at  the  foundation  of  our  civil  and  social  rights  —  could 
not  be  so  proved.  No;  we  rely  on  usage  and  tradition,  and  the  well 
known  repositories  of  legal  learning,  works  of  approved  authority,  to 
learn  what  are  the  rules  of  the  common  law  ;  and  we  have  no  doubt 
that  these  were  the  great  sources  to  which  the  above  pregnant  provision 
of  our  Constitution  refers. 

Taking  it,  then,  as  well  established  that  tlie  rules  and  maxims  of  the 
common  law  referred  to  in  the  Constitution  were  those  which  our  an- 
cestors brought  W'ith  them,  and  wliich  had  been,  to  some  extent,  modi- 
fied and  adapted  to  our  condition  by  the  legislative  jurisprudence  of  the 
colonial  and  provincial  governments,  it  follows  that  these  rules  and 
principles  were  regarded  as  binding  both  upon  legislators  and  judges 
in  their  respective  departments.  A  part  of  this  system  are  tlie  well 
known  rules  of  construction  for  the  expounding  of  statutes,  which  are 
as  much  a  part  of  every  statute  as  its  text.  These  are  presumed  to  be 
known  and  kept  in  view  by  the  legislature  in  framing  the  statute  ;  and 
they  must  be  alike  resarded  In-  judges  in  expounding  it. 

It  was  further  insisted  in  the  argument  that  the  legislature  could 
not  have  intended,  when  they  repealed  one  license  law,  in  effect  to  re- 
establish another.  But  their  intentions  must  be  ascertained  by  their 
acts  alone,  and  not  by  evidence  aliunde.  We  cannot  possibl}'  know 
the  intentions  ol  members  of  the  legislature.  ,It  is  the  will  of  the  aggre- 
gate body  as  expressed  in  the  statutes  which  they  pass,  which  can  be 
regarded  as  having  the  force  of  law  ;  anv  different  construction  would 
lead  to  the  greatest  confusion  and  uncertainty.  The  legislature  are 
presumed  to  understand  and  iutiMid  all  consequences  of  their  own 
measures  ;  and  the  only  safe  course  is  for  courts  of  justice  to  expound 
the  intentions  of  the  legislature  by  their  acts,  and  those  acts  construed 
by  known  and  established  rules  of  construction. 


CHAP.  I.]     ST.  LOUIS,  IRON    MOUNTAIN  &  SOUTHERN  EY.  V.  TAYLOR.     31 

On  the  whole,  the  Court  are  of  opinion  that  the  simple  repeal  of  St. 
1838,  c.  1 J7,  bj  that  of  1840,  c.  1,  did  revive  the  2d  and  3d  sections  of 
the  Rev.  8tats.  c.  47,  and  that  the  provisions  of  those  sections  were  in 
force  at  the  time  of  the  offences  charged  in  the  indictment,  and  that 
the  conviction  was  right. 

Exceptions  overruled. 


ST.   LOUIS,   IRON   MOUNTAIiX   &   SOUTHERN   RAILWAY 

V.  TAYLOR. 

Supreme  Court  of  the  United  States,  1908. 
[Reported  210  U.  S.  281.] 

Moody,  J.  The  defendant  in  error,  as  administratrix  of  George  W. 
Taylor,  brought,  in  the  Circuit  Court  of  the  State  of  Arkansas,  this 
action  at  law  against  the  plaintiff  in  error,  a  corporation  owning  and 
operating  a  railroad.  Damages  were  sought,  for  the  benefit  of  Taylor's 
wddow  and  next  of  kin,  on  account  of  his  injury  and  death  in  the  course 
of  his  employment  as  brakeman  in  the  service  of  the  railroad.  It 
was  alleged  in  the  complaint  that  Taylor,  while  attempting,  in  the 
discharge  of  his  duty,  to  couple  two  cars  was  caught  between  them 
and  killed.  The  right  to  recover  for  the  death  was  based  solely  on  the 
failure  of  the  defendant  to  equip  the  two  cars  which  were  to  be  coupled 
with  such  draw  bars  as  were  required  by  the  act  of  Congress  known 
as  the  Safety  Appliance  Law.  Act  of  March  2,  1893,  c.  196,  27  Stat. 
531.   .   .   . 

In  the  case  before  us  the  liability  of  the  defendant  does  not  grow  out 
of  the  common-law  duty  of  master  to  servant.  The  Congress,  not  satis- 
fied with  the  common-law  duty  and  its  resulting  liability,  has  pre- 
scribed and  defined  the  duty  by  statute.  We  have  nothing  to  do  but 
to  ascertain  and  declare  the  meaning  of  a  few  simple  words  in  which 
the  duty  is  described.  It  is  enacted  that  "no  cars,  either  loaded  or 
unloaded,  shall  be  used  in  interstate  traffic  W'hich  do  not  comply 
with  the  standard."  There  is  no  escape  from  the  meaning  of  these 
words.  Explanation  cannot  clarify  them,  and  ought  not  to  be  em- 
ployed to  confuse  them  or  lessen  their  significance.  The  ob\'ious 
purpose  of  the  legislature  was  to  supplant  the  qualified  duty  of  the 
common  law^  with  an  absolute  duty  deemed  by  it  more  just.  If  the 
railroad  does,  in  point  of  fact,  use  cars  which  do  not  comply  w4th 
the  standard,  it  \'iolates  the  plain  prohibitions  of  the  law,  and  there 
arises  from  that  violation  the  liability  to  make  compensation  to  one  who 
is  injured  by  it.  It  is  urged  that  this  is  a  harsh  construction.  To  this 
we  reply,  that,  if  it  be  the  true  construction,  its  harshness  is  no  con- 
cern of  the  courts.     They  have  no  responsibility  for  the  justice  or 


32  VANDINE.  [chap.  I. 

unsdom  of  legislation,  and  no  duty  except  to  enforce  the  law  as  it  is 
written,  unless  it  is  cleariy  beyond  the  constitutional  power  of  the 
lawmaking  body.  It  is  said  that  the  liability  under  the  statute,  as 
thus  construed,  imposes  so  great  a  hardship  upon  the  railroads  that 
it  ought  not  to  be  supposed  that  Congress  intended  it.  Certainly 
the  statute  ought  not  to  be  given  an  absurd  or  utterly  unreasonable 
interpretation  leading  to  hardship  and  injustice,  if  any  other  inter- 
pretation is  reasonably  possible.  But  this  argument  is  a  dangerous 
one,  and  never  should  be  heeded  where  the  hardship  would  be  occa- 
sional and  exceptional.  It  would  be  better,  it  was  once  said  by  Lord 
Eldon,  to  look  hardship  in  the  face  rather  than  break  down  the  rules 
of  law.  But  when  applied  to  the  case  at  bar  the  argument  of  hardship 
is  plausible  only  when  the  attention  is  directed  to  the  material  interest 
of  the  employer  to  the  exclusion  of  the  interests  of  the  employe  and 
of  the  public.  Where  an  injury  happens  through  the  absence  of  a 
safe  draw  bar  there  must  be  hardship.  Such  an  injury  must  be  an 
irreparable  misfortune  to  some  one.  If  it  must  be  borne  entirely  by 
him  who  suffers  it,  that  is  a  hardship  to  him.  If  its  burden  is  transferred, 
as  far  as  it  is  capable  of  transfer,  to  the  employer,  it  is  a  hardship  to 
him.  It  is  quite  conceivable  that  Congress,  contemplating  the  inevi- 
table hardship  of  such  injuries,  and  hoping  to  diminish  the  economic 
loss  to  the  community  resulting  from  them,  should  deem  it  wise  to 
impose  their  burdens  upon  those  who  could  measurably  control  their 
causes,  instead  of  upon  those  who  are  in  the  main  helpless  in  that 
regard.  Such  a  policy  would  be  intelligible,  and,  to  say  the  least,  not 
so  unreasonable  as  to  require  us  to  doubt  that  it  was  intended,  and  to 
seek  some  unnatural  interpretation  of  common  words.  We  see  no 
error  in  this  part  of  the  case.  But  for  the  reasons  before  given  the 
judgment  must  be  Reversed. 


/VANDINE,    Petitioner. 
Supreme  Judicial  Court  of  Massachusetts.    1828. 

[^Reported  6  Pickering,  187.] 

Petition  for  a  writ  of  certiorari  to  the  Municipal  Court  of  the  city  of 
Boston.  Vandine  was  prosecuted  upon  a  by-law  of  Boston,  passed  in 
April  1826,  b}'  which  it  is  ordained,  that  no  person  shall  remove,  cart 
or  carry  through  an}'  of  the  streets,  squares,  lanes,  or  alle3S  of  the  city, 
an}'  house-dirt,  refuse,  offal,  filth  or  animal  or  vegetable  substance  from 
an}'  of  the  dwelling-houses  or  other  places  occupied  by  the  inhabitants, 
in  any  cart,  wagon,  truck,  hand-cart  or  other  vehicle,  unless  such  per- 
son so  removing,  etc.  together  with  the  cart,  etc.  shall  be  duly  licensed 
for  that  employment  and  purpose  by  the  mayor  and  aldermen,  upon 
such  terms  and  conditions  as  thev  shall  deem  the  health,  comfort,  con- 


CHAP.  I.]  VANDINE.  33 

venience  or  interest  of  the  city  require,  on  pain  of  forfeiting  a  sura  not 
less  than  three  dollars  nor  more  than  twent}'. 

It  was  proved  at  the  trial,  that  Vandine  transported  house-dirt  and 
offal  from  the  yards  of  houses  to  his  cart  standing  in  the  streets  of  the 
city. 

Vandine  being  called  on  for  his  defence,  it  was  agreed  that  he  was 
an  inhabitant  of  the  town  of  Cambridge,  and  that  he  owned  and  kept 
there  a  large  number  of  hogs. 

The  judge  instructed  the  jury  that  the  subject  of  the  regulation 
was  one  on  which  it  was  proper  for  the  city  to  legislate.  .  .  . 
He  further  instructed  the  jury  that,  so  far  as  by  virtue  of  the  general 
laws  of  the  Commonwealth,  the  city  council  had  power  to  make  by-laws 
Kor  governing  the  city,  these  regulations  were  binding  on  all  persons 
actually  resident  within  its  limits,  either  for  business  or  pleasure,  and 
whether  inhabitants  or  strangers.^  .   .   . 

Putnam,  J.,  delivered  the  opinion  of  the  Court.  The  first  objection 
is  that  this  by-law  is  not  binding  upon  strangers,  if  it  should  be 
considered  as  binding  upon  the  citizens  of  Boston. 

Some  by-laws  are  binding  upon  strangers  as  well  as  upon  the  inhab- 
itants or  members  of  the  corporation,  and  some  are  not.  The  distinc- 
tion is  between  corporations  united  as  a  fraternity  for  the  purposes  of 
business,  having  no  local  jurisdiction,  and  corporations  having  a 
territorial  jurisdiction  ;  the  former  have  not,  but  the  latter  have  power 
to  make  by-laws  binding  upon  strangers. 

For  example:  a  by-law  of  the  corporation  of  Trinity  House,  "  that 
ever}'  mariner,  within  twenty  four  hours  after  anchorage  in  the  Thames, 
put  his  gunpowder  on  shore,  does  not  bind,  because  the  corporation  has 
no  jurisdiction  upon  the  Thames."     Com.  Dig.  Bye-law.  (7  2. 

In  the  case  of  Dodwell  v.  The  University  of  Oxford,  2  Ventr.  33,  the 
Chancellor's  Couii;  of  the  Universit}'  made  a  by-law,  that  whoever, 
privileged  or  not  privileged,  should  be  taken  walking  in  the  streets  at 
9  o'clock  at  night,  having  no  reasonable  excuse,  by  the  proctor,  etc. 
should  forfeit,  etc.  And  it  was  held  that  the  corporation  could  not 
make  a  by-law  binding  upon  an}'  who  were  not  of  their  body.  They 
went  beyond  their  jurisdiction,  which  could  not  l)e  considered  as 
extending  to  the  inhabitants  of  Oxford  who  were  not  scholars.  Regard 
is  to  be  had  to  the  nature  of  the  incorporation  ;  if  it  is  a  banking  incor- 
poration, for  example,  their  by-laws  must  be  confined  to  the  proper 
mode  of  conducting  their  afil'airs.  Where  the  corporation  has  a  local 
jurisdiction,  their  by-laws  affect  all  who  come  within  it ;  for  example, 
the  by-law  of  the  city  of  London,  that  no  citizen,  freeman  or  stranger 
should  expose  any  broad-cloth  to  sale  within  the  city  before  it  should 
be  brought  to  Blackwell  Hall  to  be  examined  whether  it  were  saleable 
or  not,  was  held  binding  upon  strangers  as  well  as  citizens.  5  Co.  63. 
So  in  Pierce  v.  Bartrum,  Cowp.  269,  a  by-law  of  the  mayor  and 

^  Part  of  the  instructions  and  the  arguments  of  counsel  have  been  omitted.  —  Ed. 


34  VANDiNi:.  [chap.  I. 

common  council  of  the  cit}'  of  Exeter,  that  no  person  should  slaughter 
beasts  or  Iceep  swine  witiiin  the  walls  of  the  city,  was  held  good  against 
tlie  defendant,  who  was  not  free  of  the  cit}',  but  onl}-  residing  there. 
He  was  considered  as  an  inhabitant  pro  hac  vice.  So  where  the  cor- 
poration have  jurisdiction  over  all  of  the  same  trade  or  profession 
within  certain  limits,  as  the  College  of  Physicians  have  for  seven  miles 
round  London  ;  whose  bv-laws  regulating  the  practice  of  physic  arc 
binding  upon  all  within  those  limits. 

The  by-laws  which  are  made  by  corporations  having  a  local  jurisdic- 
tion, are  to  be  observed  and  obeyed  by  all  who  come  within  it,  in  the 
same  manner  as  aliens  and  strangers  within  the  commonwealth  are 
bound  to  know  and  obey  the  laws  of  the  land,  notwithstanding  they 
ma}'  not  know  the  language  in  which  the}'  are  written.  The}'  receive 
the  benefits  arising  from  the  municii)al  arrangements,  and  are  presumed 
to  assent  to  them,  upon  the  same  principle  which  requires  from  them  a 
temporary  allegiance  to  the  state  for  the  protection  it  affords  to  them 
during  their  residence. 

But  it  is  contended  that  this  by-law  is  void  as  it  is  in  restraint  of 
trade,  and  operates  as  a  monopoly.  Every  regulation  of  trade  is  in 
some  sense  a  restraint  upon  it;  it  is  some  clog  or  impediment,  but  it 
does  not  therefore  follow  that  it  is  to  be  vacated.  If  the  regulation  is 
unreasonable,  it  is  void  ;  if  necessar\'  for  the  good  government  of  the 
societ}',  it  is  good. 

The  case  cited  b}'  the  counsel  for  the  defendant  from  1  Rol.  Abr. 
364,  was  of  the  former  character.  The  mayor  and  commonalt}'  of 
London  made  a  by-law,  tliat  no  carman  within  the  city  should  go  with 
liis  cart,  without  license  from  the  wardens  of  such  an  hospital,  under  a 
certain  penalty  for  each  offence  ;  and  it  was  held  to  be  a  void  b3-law, 
because  it  was  in  restraint  of  the  libert}-  of  the  trade  of  a  carman,  and 
it  was  held  to  be  unreasonable,  because  it  went  to  the  private  benefit  of 
the  wardens  of  the  hospital,  and  was  in  the  nature  of  a  monopoly. 
Now  we  think  that  case  was  rightly  decided  ;  it  was  an  act  of  oppression. 
We  perceive  no  reason  wli}'  the  wardens  of  the  hospital  should  have  a 
superintendance  and  control  of  all  the  business  of  the  carmen,  thus 
laying  them  under  a  contribution  at  the  will  of  the  wardens. 

To  arrive  at  a  correct  decision  whether  the  by-law  be  reasonable  or 
not,  regard  must  be  had  to  its  object  and  necessit}'.  Minute  regula- 
tions are  required  in  a  great  city,  which  would  be  absurd  in  the  country. 
The  cases  upon  this  subject  are  well  collected  by  Baron  Comyns  in  his 
Digest,  title  *■'  Bye-law."  It  has  been  found  to  be  reasonable  in  the  city 
of  London,  to  provide  that  brewers'  drays  should  not  be  in  the  streets 
tiiere  after  eleven  o'clock  in  the  morning  in  summer,  and  one  in  winter; 
that  no  person  should  unlade  coals  out  of  a  barge,  if  he  be  not  of  the 
porter's  company;  thus  in  some  manner  restraining  trade- 
There  have  been  regulations  also  adopted  in  that  city,  that  none 
shall  be  brokers  unless  licensed  and  sworn  ;  that  none  shall  be  hawkers 
without  license  ;  thus  In  some  measure  restraining  the  natural  rights 


CHAP.   I.]  UNITED    STATES    V.    WILTBERGER.  35 

of  the  subjects.  Now  it  is  contended  that  the  bv-law  under  considera- 
tion is  in  restraint,  and  not  a  mere  regulation  of  tlic  trade  in  which  the 
defendant  is  engaged  ;  that  he  provides  as  good  and  tight  carts  as  the 
Tnen  do  who  are  authorized  by  the  city,  in  the  performance  of  this 
labor.  We  do  not  perceive  that  there  is  an}'  more  reason  to  complain 
of  the  law  requiring  a  license  to  do  this  work,  than  of  the  law  prohibit- 
ing the  keeping  of  livery  stables  in  any  place  not  licensed.  One  might 
just  as  well  complain  of  the  reguiation  which  prevents  him  from  being 
an  auctioneer  without  license  ;  and  so  of  various  other  trades  and  con- 
cerns which  it  is  found  necessary  to  subject  to  such  restriction. 

The  great  object  of  the  city  is  to  preserve  the  health  of  the  inhabi- 
tants. To  attain  that,  they  wisely  iisregard  any  expense  which  is 
deemed  to  be  requisite.  They  might  probably  have  these  offensive 
substances  carried  out  of  the  city  without  any  expense,  if  they  would 
permit  the  people  from  the  country  to  take  them  away  at  such  times 
and  in  such  manner  as  would  best  accommodate  them.  Every  one  will 
see  that  if  this  business  were  thus  managed,  there  would  be  continual 
moving  nuisances  at  all  times,  and  in  all  the  streets  of  the  city,  break- 
ing up  the  streets  by  their  weight  and  poisoning  the  air  with  their 
effluvia.  It  is  obvious,  that  the  object  and  interest  of  the  city,  and 
those  of  the  carmen,  in  this  concern,  are  extremely  different.  But  it  is 
contended  that  the  city  authorities  may  regulate  strangers  and  un- 
licensed persons,  in  regard  to  the  number  of  horses  and  kind  of  carts 
to  be  employed,  just  as  well  as  the}'  can  carts  and  tlie  conduct  of  the 
licensed  persons.  It  seems  to  us,  however,  that  the  city  authority  has 
judged  well  in  this  matter.  They  prefer  to  employ  men  over  whom 
they  have  an  entire  control  by  night  and  by  day,  whose  services  may 
be  always  had,  and  who  will  be  able  from  habit  to  do  this  work  in  the, 
best  possible  way  and  time.  Practically  we  tiiink  the  main  object  of 
the  city  government  will  be  better  accomplished  l)y  the  arrangement 
they  have  adopted,  than  by  relying  upon  the  labor  of  others,  against 
whom  the  government  would  have  no  other  remedy  than  by  a  suit  for  8 
breach  of  contract.  The  sources  of  contagion  and  disease  will  be 
speedily  removed  in  small  loads,  which  will  not  injure  the  pavementSj 
nor  annoy  the  inhabitants.  We  are  all  satisfied  that  the  law  is  reason- 
able, and  not  only  within  the  power  of  the  government  to  prescribe, 
but  well  adapted  to  preserve  the  health  of  the  city. 

The  direction  and  opinion  of  the  judge  of  the  Municipal  Court  was 
entirely  correct. 

UNITED   STATES   v.  WILTBERGER 
SuPKKME  Court  of  the  United  States.     1820. 

[Reported  5  [Vheaton,  7V<.] 

This   was  an  indictment  for  manslaughter,   in  the  Circuit  Court  of 
Pennsylvania.     The  jury  found  the  defendant  guilty  of  the  offence  with 


36  UNITED    STATES    V.    WILTBEKGER.  [CHAP.  I. 

which  he  stood  indicted,  subject  to  the  opinion  of  the  court,  whether 
this  court  has  jurisdiction  of  the  case,  which  was  as  follows  : 

The  manslaughter  charged  in  the  indictment  was  committed  by  the 
defendant  on  board  of  the  American  ship  The  Benjaviin  Rush,  on  a  sea- 
man belonging  to  the  said  ship,  whereof  the  defendant  was  master,  in 
the  river  Tigris,  in  the  empire  of  China,  off  Wampoa,  and  about  100 
yards  from  the  shore,  in  four  and  a  half  fathoms  water,  and  below  the 
low  water  mark,  thirty-five  miles  above  the  mouth  of  the  river.  The 
water  at  the  said  place  where  the  offence  was  committed  is  fresh, 
except  in  ver}'  dry  seasons,  and  the  tide  ebbs  and  flows  at  and  above 
the  said  place.  At  the  mouth  of  the  Tigris  the  government  of  China 
has  forts  on  each  side  of  the  river,  where  custom-house  officers  are 
taken  in  b}"  foreign  vessels  to  prevent  smuggling.  Tlie  river  at  the 
mouth  and  at  Wampoa  is  about  half  a  mile  in  breadth. 

And  thereupon,  the  opinions  of  the  Judges  of  the  Circuit  Court 
being  opposed  as  to  the  jurisdiction  of  the  court,  the  question  was  hy 
them  stated,  and  directed  to  he  certified  to  this  court. ^ 

Marshall,  C.  J.  The  indictment  in  this  case  is  founded  on  the  12th 
section  of  the  act,  entitled,  "  An  act  for  the  punishment  of  certain  crimes 
against  the  United  States."  That  section  is  in  these  words:  "  And  be 
it  enacted,  that  if  an}'  seaman,  or  other  person,  shall  commit  man- 
slaughter on  the  high  seas,  or  confederate,"  etc.,  ''such  person  or 
persons  so  offending,  and  being  thereof  convicted,  shall  be  imprisoned 
not  exceeding  three  3ears,  and  fined  not  exceeding  one  thousand 
dollars." 

The  jurisdiction  of  the  court  depends  on  the  place  in  which  the  fact 
was  committed.  Manslaughter  is  not  punishable  in  the  courts  of  the 
United  States,  according  to  the  words  which  have  been  cited,  unless  it 
be  committed  on  the  high  seas.  Is  the  place  described  in  the  special 
verdict  a  part  of  the  high  seas? 

If  the  words  be  taken  according  to  the  common  understanding  of 
mankind,  if  they  be  taken  in  their  popular  and  received  sense,  the 
''  high  seas,"  if  not  in  all  instances  confined  to  the  ocean  which  washes 
a  coast,  can  never  extend  to  a  river  about  half  a  mile  wide,  and  in  the 
interior  of  a  country.  This  extended  construction  of  the  words,  it  has 
been  insisted,  is  still  farther  opposed  by  a  comparison  of  the  12th  with 
the  8th  section  of  the  act.  In  the  8lh  section.  Congress  has  shown 
its  attention  to  the  distinction  between  the  "  high  seas,"  and  "  a  river, 
haven,  basin,  or  ba}-."  The  well-known  rule  that  this  is  a  penal  statute, 
and  is  to  be  construed  stricth",  is  also  urged  upon  us. 

On  the  part  of  the  United  States,  the  jurisdiction  of  the  court  is  sus- 
tained, not  so  much  on  the  extension  of  the  words  ''  high  seas,"  as  on 
that  construction  of  the  whole  act,  which  would  engraft  the  words  of  the 
8th  section,  descriptive  of  the  place  in  which  murder  may  be  committed, 
on  the  12th  section,  which  describes  the  place  in  which  manslaughter 
may  be  committed.     This  transfer  of  the  words  of  one  section  to  the 

*  Arguments  of  counsel  and  part  of  the  opinion  are  omitted.  —  Ed. 


CHAP.  I.]         UNITED  STATES  V.    WILTBERGER.  37 

other,  is,  it  has  been  contended,  in  pursuance  of  the  obvious  intent  of 
the  legislature;  and  in  support  of  the  authority  of  the  court  so  to  do, 
certain  maxims  or  rules  for  the  construction  of  statutes  have  been 
quoted  and  relied  on.  It  has  been  said,  that  although  penal  laws  are 
to  be  construed  strictly,  the  intention  of  the  legislature  must  govern  in 
their  construction.  That  if  a  case  be  within  the  intention,  it  must  be 
considered  as  if  within  the  letter  of  the  statute.  So  if  it  be  within  the 
reason  of  the  statute. 

The  rule  that  penal  laws  are  to  be  construed  strictly,  is  perhaps  not 
much  less  old  than  construction  itself.  It  is  founded  on  the  tenderness 
of  the  law  for  the  rights  of  individuals  ;  and  on  the  plain  principle  that 
the  power  of  punishment  is  vested  in  the  legislative,  not  in  the  judicial 
department.  It  is  the  legislature,  not  the  court,  which  is  to  define  a 
crime,  and  ordain  its  punishment. 

It  is  said,  that  notwithstanding  this  ^'ule,  the  intention  of  the  law- 
maker must  govern  in  the  construction  of  penal,  as  well  as  other 
statutes.  This  is  true.  But  this  is  not  a  new  independent  rule  which 
subverts  the  old.  It  is  a  modification  of  the  ancient  maxim,  and 
amounts  to  this,  that  though  penal  laws  are  to  be  construed  strictly, 
they  are  not  to  be  construed  so  strictly  as  to  defeat  the  obvious  inten- 
tion of  the  legislature.  The  maxim  is  not  to  be  so  applied  as  to  narrow 
the  words  of  the  statute  to  the  exclusion  of  cases  which  those  words, 
in  their  ordinary  acceptation,  or  in  that  sense  in  which  the  legislature 
has  obviously  used  them,  would  comprehend.  The  intention  of  the  legis- 
lature is  to  be  collected  from  the  words  they  employ.  Where  there  is 
no  ambiguity  in  the  words,  there  is  no  room  for  construction.  The 
case  must  be  a  strong  one  indeed  which  would  justify  a  court  in  depart- 
ing from  the  plain  meaning  of  words,  especially  in  a  penal  act,  in  search 
of  an  intention  which  the  words  themselves  did  not  susrsrest.     To  deter- 


'oo^ 


mine  that  a  case  is  within  the  intention  of  a  statute,  its  language  must 
authorize  us  to  sa}'  so.  It  would  be  dangerous  indeed  to  carry  the 
principle,  that  a  case  which  is  within  the  reason  or  mischief  of  a  stat- 
ute, is  within  its  provisions,  so  far  as  to  punish  a  crime  not  enumerated 
in  the  statute,  because  it  is  of  equal  atrocity  or  of  kindred  character 
with  those  which  are  enumerated.  If  this  principle  has  ever  been 
recognized  in  expounding  criminal  law,  it  has  been  in  cases  of  con- 
siderable irritation,  which  it  would  be  unsafe  to  consider  as  precedents 
forming  a  general  rule  for  other  cases. 

After  giving  the  subject  an  attentive  consideration,  we  are  unani- 
mously of  opinion  that  the  offence  charged  in  this  indictment  is  not 
cognizable  in  the  courts  of  the  United  States  ;  which  opinion  is  to  be 
certified  to  the  Circuit  Court  for  the  district  of  Pennsylvania. 


38  ANONYMOUS.  [CHAP.  II. 


CHAPTER   II. 
LIABILITY  BASED   UPON   ACT. 


SECTION   I. 
Nature  of  an  Act. 

ANONYMOUS. 
King's  Bench,  1.370. 

[Reported  Lib.  Assis.     287,  pi.  17.] 

William  H.  was  arraigned  in  the  King's  Bench  for  that  he  had 
killed  one  J.  De  B.  feloniously;  and  he  pleaded  not  guilty.  The  jury 
came  and  said  that  the  dead  man  struck  W.  from  behind  in  the  neck 
■with  his  fist,  so  that  W.  fell  to  the  ground;  and  while  W.  was  on  the 
ground  the  dead  man  drew  his  knife  to  have  killed  W.,  and  W.,  lying 
on  the  ground,  drew  his  own  knife,  and  the  dead  man  was  so  hasty 
to  have  killed  W.  that  he  fell  on  W.'s  knife  and  so  killed  himself. 

Knivet,  C.  J.  If  W.  had  killed  the  dead  man  in  self-defence  W.'s 
chattels  would  have  been  forfeited,  and  W.  would  have  sued  the  king 
to  have  a  charter  of  pardon ;  but  now  it  is  found  that  the  dead  man  killed 
himself,  in  a  way,  wherefore  we  will  advise  whether  W.  shall  be  put  to 
sue  the  king  for  his  charter  and  forfeit  his  goods,  or  not. 

And  then  he  was  adjudged  not  guilty4  and  his  chattels  not  forfeited.^ 

^  "An  act  is  the  result  of  an  exercise  of  the  will."  Gray,  J.,  in  Duncan  v.  Landis, 
106  Fed.  839,  848. 

"Acts  are  exertions  of  the  will  manifested  in  the  external  world."  Professor 
Pound,  Readings  on  the  History  and  System  of  the  Common  Law,  4.33. 

"If  a  movement  is  caused  by  physical  compulsion,  ' vi,i  absoluta,'  as  when  the 
hand  of  a  person  is  forcibly  guided  in  making  a  signature,  there  is  no  act,  since  will 
is  absent.  But  the  will  itself,  being  amenable  to  motives,  may  be  coerced  by  threats, 
'metus,'  'vis  com.pul.iiva,'  'duress  per  minas.'  Here  there  is  indeed  an  act,  but  one 
which  produces  none  or  few  of  the  legal  consequences  which  it  would  have  produced 
had  it  been  the  result  of  free  volition."    Holland,  Jurisprudence,  103. 


SECT.  I.J  GIBBONS   V.    PEPPER.  ^9 


GIBBONS  V.  PEPPER. 
King's  Bench,  1695. 

[Reported  1  Ld.  Raym.  38.] 

Tkespass,  assault  and  battery.  The  defendant  pleads,  that  he  rode 
upon  a  horse  in  the  king's  highway,  and  that  his  horse  being  affrighted 
ran  away  with  him,  so  that  he  could  not  stop  the  horse;  that  there 
were  several  persons  standing  in  the  way,  among  whom  the  plaintiff 
stood;  and  that  he  called  to  them  to  take  care,  but  that  notwithstand- 
ing, the  plaintiff  did  not  go  out  of  the  way,  but  continued  there; 
so  that  the  defendant's  horse  ran  over  the  plaintiff  against  the  will 
of  the  defendant;  quae  est  eadeiri  transgressio,  &c.  The  plaintiff  de- 
murred. And  Serjeant  Darnail  for  the  defendant  argued,  that  if  the 
defendant  in  his  justification  shews  that  the  accident  was  ine\atable, 
and  that  the  negligence  of  the  defendant  did  not  cause  it,  judgment 
shall  be  given  for  him.  To  prove  which  he  cited  Hob.  344.  Weaver 
V.  Ward.     Mo.  864.  pi.  1192.    2  Roll.  Abr.  548.     1  Brownl.  prec.  188. 

Northey  for  the  plaintiff  said,  that  in  all  these  cases  the  defendant 
confessed  a  battery,  which  he  afterwards  justified;  but  in  this  case 
he  justified  a  battery,  which  is  no  battery.  Of  which  opinion  was  the 
whole  court;  for  if  I  ride  upon  a  horse,  and  J.  S.  whips  the  horse,  so 
that  he  runs  away  with  me,  and  runs  over  any  other  person,  he  who 
whipped  the  horse  is  guilty  of  the  battery,  and  not  me.  But  if  I  by 
spurring  was  the  cause  of  such  accident,  then  I  am  guilty.  In  the 
same  manner,  if  A.  takes  the  hand  of  B.  and  with  it  strikes  C,  A.  is 
the  trespasser,  and  not  B.  And,  j^f^i"  curiam,  the  defendant  might  have 
given  this  justification  in  e\adeAce,  upon  the  general  issue  pleaded. 
And  therefore  judgment  was  given  for  the  plaintiff. 


40  REX    ?;.   SUTTON.  [CHAP.    11. 


REX   V.    SUTTON. 
King's  Bexch.     1736. 

^Reported  Cases  temp.  Hardwicke,  370.3  ^ 

The  defendant  was  indicted,  for  that  being  a  person  of  evil  fame 
and  reputation,  on  tlie  2.3tli  day  of,  &c.,  witliout  any  lawful  authority, 
[he]  had  in  his  custody  and  jjossession  two  iron  stamps,  each  of  which 
would  make  or  impress  the  ligure,  resemblance,  and  similitude  of  one 
of  the  sceptres  made  and  imprest  upon  the  current  gold  coin  of  this 
kingdom,  called  half-guineas,  with  an  intent  to  make  the  impression  of 
sceptres  on  divers  pieces  of  silver  coin  of  this  realm,  called  sixpences, 
and  to  color  such  pieces  of  the  color  of  gold,  and  fraudulently  to 
utter  them  to  his  Majesty's  subjects,  for  and  as  pieces  of  lawful  and 
current  gold  coin  of  this  realm,  called  holf-guineas,  against  the  peace 
of  our  Lord  the  King,  his  crown  and  dignity.  And  the  indictment 
further  sets  forth,  that  the  defendant,  the  day  and  year  aforesaid,  in 
the  said  county  of  Northampton,  unlawfully  had  in  his  custody  and 
possession  one  piece  of  silver,  colored  over  with  certain  metal  pro- 
ducing the  color  of  gold,  and  feloniously  made  to  resemble  a  piece  of 
the  current  coin  of  this  realm,  commonly  called  a  half-guinea,  with 
intent  to  utter  the  said  piece  so  colored  and  feloniously  made  to  re- 
semble a  half-guinea  to  some  of  his  Majesty's  subjects  for  and  as  a 
piece  of  lawful  and  current  gold  coin  of  this  realm,  called  a  half- 
guinea  (he,  the  said  defendant,  then  and  there  well  knowing  the  said 
piece  to  be  silver  coin  colored  and  falsely  made),  to  the  evil  example 
of  all  others,  and  against  the  peace  of  our  Lord  the  King,  his  crown 
and  dignity. 

The  defendant  was  tried  upon  this  indictment  at  the  last  summer 
assizes,  and  found  guilty,  before  my  Lord  Hardwicke,  C.  J.  ;  and  he 
having  some  doubt  what  the  offence  was,  the  defendant  was  brought 
up  last  jNIichaelmas  term  by  habeas  corpus,  and  committed  to  Newgate, 
and  the  indictment  removed  into  the  King's  Bench  by  certiorari,  for 
the  opinion  of  the  court.     And  Lord  Hardwicke,  C.  J.,  then  said  : 

As  to  the  first  part  of  the  indictment,  I  doubted  whether  it  was  not 
high  treason  within  the  Stat.  8  &  9  Will.  IH.  c.  26,  s.  6  ;  but  it  is 
not  at  all  clear  it  would  be  so,  because  this  is  only  to  stamp  part  of 
one  side  of  the  coin,  viz.,  putting  sceptres.  Then  it  is  a  misdemeanor 
at  common  law,  and  it  did  not  occur  to  me  that  having  in  one's  cus- 
tody with  an  intent,  without  any  act  done,  was  a  misdemeanor.     As  to 

1  s.  c.  2  Stra.  1074. 


SECT.  I.]  REX   V.    SUTTON.  41 

the  second  part,  I  doubted  whether  any  precedent  could  be  found  to 
show  that  the  bare  having  counterfeit  money  in  one's  possession,  with 
intention  to  utter  it,  without  uttering  it,  was  an  offence.^ 

For  the  defendant  it  was  argued,  that  the  common  law  takes  no 
notice  of  a  bare  intention,  as  a  crime,  unless  coupled  with  some  overt 
act ;  and  therefore,  though  in  the  time  of  Edw.  III.  an  intention  to  rob 
was  a  felony,  ^'et  even  then,  as  appears  by  3  Inst.  fo.  5,  there  must 
have  been  some  overt  act  to  show  that  intention.  So  in  Bacon's  Case, 
1  Sid.  230,  and  1  Lev.  146,  though  an  intention  to  kill  the  Master  of 
the  Rolls  was  adjudged  a  misdemeanor,  yet  there  was  an  overt  act, 
viz.,  a  reward  offered  by  the  defendant  for  doing  it:  so  in  Holmes's 
Case,  Cro.  Car.  376,  where  burning  his  house  with  an  intention  to  burn 
his  neighbor's  was  held  a  misdemeanor  ;  yet  there  was  an  act  joined 
to  the  evil  intention,  viz.,  the  burning  his  own  house.  So  in  the  case 
of  The  King  v.  Cooper,  5  Mod.  206,  and  Skinner,  637,  where  an  inten- 
tion to  assist  the  king's  enemies  was  held  a  misdemeanor  ;  yet  there 
was  an  overt  act  laid,  viz.,  hiring  a  boat  for  that  purpose.  But  this 
indictment  is  really  nothing  more  than  for  an  intention  to  make  an 
impression  with  such  stamps  as  he  had  in  his  custody  ;  and  a  man  may 
be  possessed  of  a  thing  without  having  done  anything  to  acquire  the 
possession  ;  and  the  bare  having  a  thing  is  not  unlawful,  unless  made 
use  of,  or  unless  such  bare  possession  is  made  a  crime  by  a  positive 
law,  as  in  the  case  of  the  Statute  of  AVill.  III.  [c.  26]. 

Pkr  Cur.  viz.,  Page,  Probyn,  and  Lee,  JJ.  Judgment  must  be  given 
against  the  defendant. 

Lee,  J.  It  is  certain  that  a  bare  intention  is  not  punishable  ;  and 
yet  when  joined  with  acts  whose  circumstances  may  be  tried,  it  is  so ; 
so  an  action  innocent  in  itself  may  be  made  punishable  by  an  inten- 
tion joined  to  it ;  as  loading  wool  with  intention  to  transport  it,  as 
Lord  Hale  says  in  his  Hist.  Plac.  Coron.  vol.  i.  p.  229.  In  this  case  the 
indictment  is  for  unlawfully  having  in  his  custody  stamps  capable  of 
jtiaking  impression  of  sceptres,  with  intent  to  make  such  impression  : 
now  the  Statute  of  8  &  9  Will.  HI.  [c.  26 j  has  considered  the  having 
as  an  act ;  for,  by  the  statute,  it  is  high  treason  to  have  [knowingly 
any]  instrument,  &c.,  in  his  possession  ;  and  though  the  word  "  know- 
ingly "  is  added,  yet  that  is  an  act  of  the  mind  only  ;  and  the  only  act 
capable  of  trial  in  the  offence  against  the  statute  is  the  having  in  pos- 
session. All  that  is  necessary  in  this  case  is  an  act  charged,  and  a 
criminal  intention  joined  to  the  act. 

The  court  gave  judgment  that  the  defendant  do  stand  in  the  pillory 
at  Charing-cross  ;  and  in  consideration  of  his  poverty  and  long  impris- 
onment hitherto,  that  he  do  pay  a  fine  of  6s.  8d.  and  be  imprisoned  for 
six  months. 

1  The  argument  for  the  prosecution  is  omitted. 


42  REX    V.    HEATH.  [CHAP.    II, 


REX   V.  HEATH. 

Crown  Case  Reserved.     1810. 

[Reported  Russ.  ^'  Ry.  184.] 

This  case  stood  for  trial  before  Mr.  Justice  Batley,  at  the  Lent 
assizes  for  the  county  of  Warwick,  in  the  yea.v  1810  ;  but  as  the  learned 
Judge  thought  it  questionable  whether  the  facts  constituted  an}'  offence, 
and  as  the  defendant  was  out  upon  bail,  he  postponed  the  trial  by  con- 
sent, that  the  opinion  of  the  judges  might  in  the  meantime  be  taken 
upon  the  case. 

The  indictment  contained  three  counts  :  one  for  uttering  counterfeit 
money,  a  second  for  having  it  in  his  possession,  knowing  it  to  be  coun- 
terfeit, with  intent  to  circulate  and  put  off  the  same  among  the  liege 
subjects  of  our  Lord  tiie  King,  and  to  defraud  them,  and  a  third  for 
having  it  in  his  possession  knowingl}',  designed!}^,  and  illegally,  know- 
ing it  to  be  counterfeit. 

The  only  act  of  uttering  was  delivering  a  box  packed  up,  containing 
2800  bad  shillings,  and  1000  bad  sixpences  at  a  coach  office  at  an  inn 
at  Birmingham  addressed  to  a  man  at  Glasgow,  and  the  uttering  was 
stated  to  be  to  the  book-keeper  at  the  inn. 

The  box  was  stopped  at  the  inn. 

The  following  authorities  were  referred  to  in  support  of  the  second 
and  third  counts.  Rex  v.  Sutton,  Ca.  temp.  Hardw.  370  ;  Rex  v.  Sco- 
field,  Cald.  397,  and  Rex  ik  Higgins,  2  East.  5. 

In  Easter  term,  31st  May,  1810,  this  case  was  taken  into  considera- 
tion, all  the  judges  being  present.  They  relied  much  upon  the  authority 
of  Rex  V.  Sutton,  and  the  cases  there  cited,  in  forming  their  opinion, 
and  were  then  incUned  to  think  this  a  misdemeanor  as  stated  in  the 
second  count.  But  on  considering  this  case  again  on  the  first  da}" 
of  Trinity  term  ensuing,  the  majority  of  the  judges  seemed  to  be  of 
opinion  that  "  having  in  his  possession  "  with  the  terms  knowingly,  &c. 
annexed  to  it,  could  not  be  considered  an  act,  and  that  an  intent  without 
an  act  was  not  a  misdemeanor,  and  they  considered  the  case  of  Rex  v. 
Sutton  as  untenable.^ 

1  The  result  seems  to  be  that  the  second  and  third  counts  of  the  indictment  as  here 
framed  are  not  good,  and  any  judgment  upon  them  might  be  arrested. 

But  the  facts  seemed  to  afford  grounds  for  a  good  indictment,  by  stating  that  the 
defendant  acquired  or  procured  the  bad  money  with  intent  to  circulate  it,  or  packing 
it  up  or  delivering  to  the  book-keeper  with  intent  to  circulate  it.     ms.  .icd. 

See  the  same  point  decided  as  in  the  above  case  in  Rex  v.  Stewart,  Mich.  T.  1814, 
post.     See  also  Rex  v.  C6llicott,  Hilary  T.  1812,  post. —  ligp. 


SECT,  I.]  DUGDALE    V.   EEGINA.  43 


DUGDALE   V.  REGINA. 
Queen's  Bench.    1853. 

[Reported  1  Ellis  <J-  Blackburn,  435.] 

The  defendant  was  indicted  at  the  Middlesex  sessions.  The  indict- 
ment contained  seven  counts.^  The  defendant  having  been  found  guilty, 
judgment  was  passed  upon  him,  separately  upon  each  count,  whei'eupoa 
he  brought  error  in  tliis  court.     Joinder  in  error. 

W.  J.  Metcalfe^  for  the  plaintiff  in  error.  The  question  on  the  first 
and  corresponding  counts  is,  whether  the  procuring  obscene  prints  with 
intent  to  publish  them  be  a  misdemeanor  at  common  law.  The  counts 
charge  no  attempt  to  publish.  On  the  second  and  corresponding  counts 
the  question  is,  whether  the  possessing  with  intent  to  publish  be  a  mis- 
demeanor, no  act  at  all  being  charged." 

Clarkson,  contra,  was  stopped  b}'  the  court. 

Lord  Campbell,  C.  J.  We  have  decisions  on  both  sets  of  counts. 
Rex  V.  Heath,  Riiss.  &  R.  184,  shows  that  those  counts  cannot  be  sup- 
ported which  mere]}'  charge  a  possession  with  intent  to  publish ;  the 
mere  intent  cannot  constitute  a  misdemeanor  when  unaccompanied 
with  any  act.  The  case  is  precisely  in  point.  But,  as  to  the  counts 
which  charge  a  procuring  with  intent  to  publish,  we  find  that  in  Rex  v. 
Fuller,  Russ.  &  R.  308,  in  Easter  term,  1816,  all  the  judges  were  of 
opinion  that  the  procuring  counterfeit  coin  with  intent  to  utter  was 
a  misdemeanor,  and  that  this  might  be  evidenced  by  the  possession. 
Must  not  the  law  be  the  same  as  to  the  publication  of  indecent  prints? 
The  circulation  of  counterfeit  coin  is  a  statutory  offence  ;  the  circulation 
of  indecent  prints  is  punished  at  common  law  for  the  protection  of 
morals.  The  procuring  of  such  prints  is  an  act  done  in  the  commence- 
ment of  a  misdemeanor,  the  misdemeanor  being  the  wicked  offence  of 
publishing  obscene  prints. 

Colp:ridge,  J.  I  am  of  the  same  opinion.  The  law  will  not  take 
notice  of  an  intent  without  an  act.  Possession  is  no  such  act.  But 
procuring,  with  the  intent  to  commit  the  misdemeanor,  is  the  first  step 
towards  the  committing  of  the  misdemeanor. 

WiGHTMAN,  J.  I  concur  on  both  points.  Mr.  Metcalfe  has  clearly 
shown  that  the  possession  is  not  indictable,  as  not  being  an  act ;  but 
the  procuring  is  an  act. 

Crompton,  J.  Rex  r.  Fuller,  Russ.  &  R.  308,  is  a  distinct  authority. 
Judgment  on  the  first  and  con-esponding  counts  affirmed. 

^  The  indictment  is  omitted. 
2  The  argument  is  omitted. 


44  REX    V.    SQUIRE.  [chap.   II. 


SECTION   II. 
Omission  as  an  Act. 

MEMORANDUM. 

Common  Bench.     1368. 

[Reported  Y.  B.  43  Edw.  3,  33,  pi.  38.] 

Thorpe,  J.,  saicT  that  he  had  seen  that  one  M.  was  indicted  for  that 
he  had  undertaken  a  man  for  a  malady  and  that  he  killed  the  man  by 
default  of  care. 


REX  V.  SQUIRE. 
Stafford  Assizes.     1799. 
[Reported  1  Russ.  Cr.  ^  M.  24.] 

Charles  Squire  and  his  wife  were  indicted  for  the  murder  of  a  boy 
who  was  bound  as  a  parish  apprentice  to  the  prisoner  Charles;  and  it 
appeared  in  evidence  that  both  the  prisoners  had  used  the  apprentice 
in  a  most  cruel  and  barbarous  manner,  and  that  the  wife  had  occasion- 
ally committed  the  cruelties  in  the  absence  of  the  husband.  Rut  the 
surgeon  who  opened  the  bod}'  deposed  that  in  his  judgment  the  boy 
died  from  debilit}'  and  want  of  proper  food  and  nourishment,  and  not 
from  the  wounds,  etc.,  which  he  had  received.     Upon  which 

Lavtrence,  J.,  directed  the  jury  that  as  the  wife  was  the  servant  of 
the  husband  it  was  not  her  duty  to  provide  the  apprentice  with  suffi- 
cient food  and  nourishment,  and  that  slie  was  not  guilt}'  of  any  breach 
of  duty  in  neglecting  to  do  so  ;  though,  if  the  husband  had  allowed  her 
sufficient  food  for  the  apprentice  and  she  had  wilfully  withholden  it  from 
him,  then  she  would  have  been  guilty.  But  that  here  the  fact  was 
otherwise  ;  and  therefore,  though  in  foro  conscientice  the  wife  was 
equally  guilty  with  her  husband,  yet  in  point  of  law  she  could  not  be 
said  to  be  guilty  of  not  providing  the  apprentice  with  sufficient  food 
and  nourishment. 


SECT.  II.]  REX   V.   FRIEND.  45 


REX   V.    FRIEND. 
Crown  Case  Reserved.     1802. 

[Reported  Russell  ^-  Ryan,  20.] 

The  prisoners  were  tried  before  Mr.  Justice  Le  Blanc  at  the  Exeter 
summer  assizes  in  the  year  1801,  on  an  indictment  for  a  misdemeanor, 
which  charged  that  they  did  take  and  receive  one  Sarah  Quill  into  the 
dwelling-house  of  the  prisoner,  John  Friend,  as  an  apprentice  of  the 
said  John  Friend,  to  be  by  him  treated,  maintained,  and  supported  as 
an  apprentice  of  him  the  said  John  Friend,  and  did,  for  a  long  time, 
have  and  keep  her  in  the  said  house  as  such  apprentice  as  aforesaid  ; 
and  that  during  the  said  time  they  so  had  and  kept  her  in  the  said 
house  as  such  apprentice,  the  said  prisoners,  and  each  of  them,  did, 
with  force  and  arms,  unlawfully  and  injuriously,  and  without  the  con- 
sent of  the  said  Sarah  Quill,  and  against  her  will,  neglect  and  refuse 
to  find  and  provide  for  and  to  give  and  administer  to  her,  being  so 
had  and  kept  as  such  apprentice  as  aforesaid,  sufficient  meat,  drink, 
victuals,  wearing  apparel,  bedding,  and  other  necessaries  proper  and 
requisite  for  the  sustenance,  support,  maintenance,  clothing,  covering, 
and  resting  the  body  of  the  said  Sarah  Quill ;  by  means  whereof  she 
became  emaciated  and  almost  starved  to  death,  and  the  constitution 
and  frame  of  her  body  greatly  hurt  and  impaired,   &c. 

It  was  proved  that  Sarah  Quill,  a  girl  of  thirteen  or  fourteen  years 
of  age,  went  to  live  with  Friend  as  an  apprentice,  and  continued  with 
him  about  a  year.^  It  was  objected,  on  behalf  of  the  prisoners,  tliat 
the  evidence  was  not  sufficient  to  prove  the  relation  of  master  and 
apprentice,  so  as  to  create  the  legal  obligation  on  the  master  to  pro- 
vide for  the  apprentice  sufficient  meat,  clothing,  &c.,  a  breach  of 
which  would  subject  him  to  a  criminal  prosecution. 

The  learned  judge  permitted  the  prosecution  to  proceed,  as  the 
indictment  was  in  other  respects  fully  supported  by  the  evidence.  The 
jury  found  John  Friend  guilty,  but  acquitted  Anne,  his  wife.  The 
learned  judge  thought  it  best  to  pass  sentence  of  imprisonment  on  the 
prisoner  ;  that  in  case  the  judges  should  be  of  opinion  that  the  above 
evidence  did  not  support  the  indictment,  a  pardon  might  be  obtained. 

At  a  meeting  of  all  the  judges  at  Lord  Kenyon's  chambers  on  tiie 
first  day  of  Michaelmas  term,  1801,  this  case  was  ordered  to  stand 
over  for  further  consideration  to  the  first  day  of  the  next  Hilary 
term  ;  on  that  day  it  was  further  adjourned  ;  and  after  Hilary  term, 
viz.  on  the  25th  of  February,  1802,  was  considered  at  a  meeting  of  all 
the  judges  (except  Lord  Kenyon  and  Mr.  Justice  Rooke).  The  gen- 
eral opinion  was,  that  it  was  an  indictable  offence,  as  a  misdemeanor, 

1  The  statement  of  facts  has  been  abridged.  —  Ed. 


46  REGINA   l\   LOWE.  [CHAP.    11. 

to  refuse  or  neglect  to  provide  sufficient  food,  bedding,  &c.,  to  any 
infant  of  tender  years  unable  to  provide  for  and  take  care  of  itself 
(whether  such  infant  were  child,  apprentice,  or  servant),  whom  a  man 
was  obliged  by  duty  or  contract  to  provide  for,  so  as  thereby  to 
injure  its  health  ;  but  that,  in  the  present  case,  the  indictment  was 
defective  in  not  stating  tlie  child  to  be  of  tender  years  and  unable  to 
provide  for  itself.  However,  as  in  the  present  case,  the  objection 
was  taken  to  the  evidence  not  supporting  the  indictment,  rather  than 
to  the  indictment  itself ;  and  there  being  some  difference  of  opinion,  all 
tlie  judges  thought  it  right  that  the  final  decision  should  be  adjourned, 
and  that  the  prisoner  should  suffer  the  whole  of  his  imprisonment. 

Mr.  Justice   Chambre  thought  that  it  was  not  in  any  manner  an 
indictable  offence,  being  founded  wholly  on  contract. 


REGINA    V.   LOWE. 

Worcestershire  Assizes.     1850. 

[Reported  3  Carrimjton  ^-  Kirwan,  123.] 

Manslaughter.  —  The  prisoner  was  indicted  for  the  manslaughter 
of  Thomas  Tibbitts. 

It  appeared  that  he  was  an  engineer,  and  that  his  duty  was  to  man- 
age a  steam-engine  employed  for  the  purpose  of  drawing  up  miners 
from  a  coal  pit ;  and  when  the  skip  containing  the  men  arrived  on  a 
level  with  the  pit's  mouth,  his  duty  was  to  stop  the  revolution  of 
the  windlass,  so  that  the  men  might  get  out.  He  was  the  only  man  so 
employed  on  the  premises.  On  tlie  day  in  question  he  deserted  his 
post,  leaving  the  engine  in  charge  of  an  ignorant  boy,  who,  before  the 
prisoner  went  away,  declared  himself  to  the  prisoner  to  be  utterly 
incompetent  to  manage  such  a  steam-engine  as  the  one  intrusted  to 
him.  The  prisoner  neglected  this  warning,  and  threatened  the  boy,  in 
case  he  refused  to  do  as  he  was  ordered.  The  boy  superintended  the 
raising  of  two  skips  from  the  pit  with  success,  but  on  the  arrival  at  the 
pit's  mouth  of  a  third,  containing  four  men,  he  was  unable  to  stop 
the  engine,  and  the  skip  being  drawn  over  the  pulley,  the  deceased, 
who  was  one  of  the  men,  was  thrown  down  into  the  shaft  of  the  pit 
and  killed  on  the  sj)ot. 

It  appeared  that  the  engine  could  not  be  stopped  "  in  consequence 
of  the  slipper  being  too  low,"  an  error  which  it  was  proved  that  any 
competent  engineer  could  have  rectified,  but  which  the  bof  in  charge 
of  the  engine  could  not. 

Huddlesfon^  for  the  prisoner,  contended  that  a  mere  omission  or 
neglect  of  duty  could  not  render  a  man  guilty  of  manslaughter,  and 


SECT.  II.]  'ftEGINA   V.    SMITH.  47 

he  cited  the  cages  of  Rex  v.  Green,  7  C.  &  P.  156,  and  Rex  v.  Allen, 
7  C.  &  P.  153. 

Lord  Campbell,  C.  J.  I  am  clearly  of  opinion  that  a  man  may, 
by  a  neglect  of  dutj',  render  himself  liable  to  be  convicted  of  man- 
slaughter, or  even  of  murder.  Verdict  guilty. 


REGINA  V.  CONDE. 
Central  Criminal  Court.     1867. 

[Reported  10  Co.r  C.  C.  547.] 

John  George  Conde  and  ]\Iary  Conde  were  indicted  for  and 
charged,  upon  the  coroner's  inquisition,  with  the  wilful  murder  oi 
AVilliam  Conde. ^ 

George  Charles  Kernott,  licentiate  of  the  Apothecaries'  Compan}', 
proved  that  the  deceased  died  from  starvation  ;  death,  no  doubt,  having 
been  accelerated  b}'  beatings. 

Channell,  B.,  in  summing  up  the  case  to  the  jur^'  directed  them 
as  follows  :  If  the  prisoners  or  either  of  them  wilfuU}'  withheld  neces- 
sary food  from  the  deceased,  with  a  wilful  determination,  by  withhold- 
ing sustenance  which  was  requisite,  to  cause  his  death,  then  the  party 
so  withholding  such  food  is  guilty  of  murder.  If,  however,  the  prison- 
ers had  the  means  to  supply  necessaries,  the  want  of  which  had  led  to 
the  death  of  the  deceased,  and  having  the  means  to  supph'  such  neces- 
saries, negligently  though  not  wilfully  withheld  food  which  if  admin- 
istered would  have  sustained  life,  and  so  caused  the  death  of  the 
deceased,  then  that  would  amount  to  the  crime  of  manslaughter  in 
the  person  so  withholding  the  food. 

Mary  Conde  guilty  of  manslaughter. 
John  George  Conde  not  guilty. 


REGINA  V.  SMITH. 

Carlisle  Assizes.     1869. 

[Reported  11   Cox  C.  C.  210.] 

Thomas  Smith  was  indicted  for  the  manslaughter  of  Richard  Gibson, 
at  Dearham,  on  the  8th  of  Februaiy,  1869,  under  the  following  circum- 
stances : 

1  Most  of  the  evidence  preseuted  in  this  case  has  been  omitted. 


48  REGINA   V.   WHITE.  [CHAP.  II. 

The  prisoner  was  employed  by  a  Mr.  Harrison,  an  extensive  colliery 
proprietor  near  Dearham,  and  who  was  also  the  owner  of  a  tramway 
which  crossed  the  Maryport  and  Carlisle  turnpike  road.  It  was  the 
prisoner's  duty  to  give  warning  to  any  persons  when  any  trucks  might 
cross  the  said  road.  The  tramway  was  in  existence  before  the  road, 
and  in  the  act  by  which  the  road  was  made  there  was  no  clause  impos- 
ing on  Mr.  Harrison  the  duty  of  placing  a  watchman  where  the 
tramway  crossed  the  road.  On  the  8th  of  February,  18G9,  the  deceased 
was  crossing  the  tramway,  having  received  no  warning  that  any  trucks 
were  about  to  cross  the  road.  As  he  was  crossing,  however,  he  was 
knocked  down  by  some  trucks  and  was  killed.  On  inquiry  it  appeared 
that  the  prisoner  was  absent  from  his  post  at  that  time,  although  he 
had  strict  orders  never  to  be  absent. 

Campbell  Foster,  for  the  prisoner,  contended  that,  it  being  an 
act  of  omission  such  omission  ought  to  have  been  stated  in  the 
indictment. 

The  learned  judge  [Lusii,  J.]  held  that  under  the  words  "  did 
feloniously  kill  and  slay  "  it  was  unnecessary  to  state  in  the  indict- 
ment that  it  was  an  act  of  omission  on  the  part  of  the  prisoner  which 
caused  the  death  of  the  deceased. 

Campbell  Foster  then  contended  that  the  facts  of  the  case  disclosed 
no  duty  between  the  prisoner  and  the  public. 

In  this  the  learned  judge  concurred,  saying  that,  there  being  no 
clause  in  the  act  compelling  Mr.  Harrison  to  place  a  watchman  where 
the  tramway  crossed  the  road,  the  prisoner  was  merely  the  private  ser- 
vant of  Mr.  Harrison  ;  and  that  consequently  his  negligence  did  not 
constitute  such  a  breach  of  duty  as  to  make  him  guilty  of  manslaughter. 

Prisoner  discharged. 


REGINA  V.  WHITE. 

Court  for  Crown  Cases  Reserved.     1871. 
[Reported  L.  R.  I  C.  C.  311.] 

Case  stated  b\-  the  Chairman  of  the  Hants  Quarter  Sessions. 

Indictment  under  24  &  25  Vict.  c.  100,  s.  27  (1),  for  unlawfully  and 
wilful!}'  abandoning  and  exposing  a  child  under  the  age  of  two  years, 
whereby  the  life  of  the  child  was  endangered. 

At  the  trial  at  Winchester,  it  appeared  from  the  evidence  that  Emily 
White  (the  wife  of  William  White),  who  was  not  included  in  the  indict- 
ment, was  the  mother  of  the  child,  which  was  about  nine  months  old  at 
the  time  mentioned  in  the  Indictment.  On  the  19th  of  October,  1870, 
she  had  an  interview  with  her  husband,  from  whom  she  had  been  living 
apart  since  the  11th  of  August  of  the  same  year,  and  asked  him  if  he 
intended  to  give  her  money  or  victuals  ;  he  passed  by  her  without  an- 


SECT.  II.]  REGINA    V.    WHITE.  49 

swering,  and  went  into  his  house  ;  this  was  about  7  p.  ir.  His  mother, 
the  prisoner,  Maria  White,  shut  the  wicket  of  the  garden,  and  forbade 
his  wife  from  coming  in  ;  the  wife  then  went  to  the  door  of  the  house, 
laid  the  child  down  close  to  the  door,  and  called  out,  "  Bill,  here  's  your 
child,  I  can't  keep  it  —  I  am  gone."  She  left,  and  was  seen  no  more 
that  night.  Shortly  after,  William  White  came  out  of  the  house, 
stepped  over  the  child,  and  went  awaj-.  About  8.30  p.  m.  two  wit- 
nesses found  the  child  l3'ing  in  the  road,  outside  of  the  wicket  of  the 
garden,  which  was  a  few  yards  from  the  house-door;  it  was  dressed  in 
short  clothes,  with  nothing  on  its  head  ;  the}'  remained  at  the  spot  till 
about  10  p.  M.,  when  William  White  came  home.  They  told  him  that 
his  child  was  lying  in  the  road;  his  answer  was,  "  It  must  bide  there 
for  what  he  knew,  and  then  the  motlier  ought  to  be  taken  up  for  the 
murder  of  it."  Another  witness,  Maria  Thorn  (the  mother  of  his  wife), 
deposed  also  to  the  fact  that  at  about  the  same  time,  in  answer  to  her 
observation  that  he  ought  to  take  the  child  in,  he  said,  "  He  should  not 
touch  it  —  those  that  put  it  there  must  come  and  take  it."  She  then 
went  into  the  house.  About  11  p.  m.,  one  of  the  two  witnesses  went 
for  a  police  constable,  and  returned  with  him  to  the  place  about  1  a.m., 
when  the  child  was  found  hing  on  its  face  in  the  road,  with  its  clothes 
blown  over  its  waist,  and  cold  and  stiff.  The  constable  took  charjxe  of 
it,  and  bj'  his  care  it  was  restored  to  animation.  At  4.30  a.  >r.  the  con- 
stable went  to  the  house,  and  asked  William  White  if  he  knew  where 
his  child  was  ;  he  said,  "No."  On  being  asked  if  he  knew  it  was  in 
the  road,  he  answered,  "Yes."  It  appeared  that,  during  the  time  which 
elapsed  between  William  White  leaving  his  house,  about  7  p.  m.  ,  and 
his  return,  about  10  p.  m.,  he  had  been  to  the  police  constable  stationed 
at  Beaulieu,  and  told  him  that  there  had  been  a  disturbance  between 
him  and  his  wife,  and  wished  him  to  come  up  and  settle  it,  but  he  did 
not  sa}'  an^'thing  about  the  child. 

The  prisoner's  counsel  objected  that  upon  these  facts  there  was  no 
evidence  of  abandonment  or  exposure,  under  the  Act,  by  William 
White. 

He  also  objected  that  there  was  no  evidence  against  John  White  and 
Maria  White. 

The  Court  were  of  opinion  that  there  was  no  evidence  against  the 
two  last-named  prisoners,  but  overruled  the  objection  as  to  William 
White,  as  to  whom  the  case  was  left  to  the  jury,  who  found  him 
guilty. 

The  question  for  the  Court  was,  whether  the  prisoner,  William  While, 
was  properl}-  convicted  upon  the  facts  as  above  stated. 

April  29.     No  counsel  appeared.  Cur  adv.  vult. 

May  6.  Bovill,  C.  J.  We  have  considered  this  case,  and  we  are  of 
opinion  that  the  conviction  was  right,  and  ought  to  be  affirmed.  The 
prisoner  was  indicted,  under  24  &  25  Vict.  c.  100,  s.  27,  for  unlawfully 
abandoning  and  exposing  a  child,  under  the  age  of  two  3'ears,  whereby 
its  life  was  endangered.     On  the  facts  stated  in  the  case  the  objection 


50  KEGINA   V.   -WHITE.  [CHAP.  II. 

was  taken  that  there  was  no  evidence  of  abandonraent  or  exposure. 

Nqw,  the  prisoner  was  the  father  of  the  child,  and  as  such  was  entitled 

to  the  custod}'  and  control  of  it,  and  was  not  only  morally  but  legally 

bound  to  provide  for  it.    Then  it  appears  that  when  the  child  was  lying 

at  the  door  he  saw  it,  stepped  over  it,  and  left  it  there.     Afterwards, 

when  the  child  was  in  the  road,  he  knew  it  was  there.     I  am  clearly  of 

opinion  tiiat  there  was  evidence  here  upon  whicii  the  jury  might  and 

J  ought  to  convict  the  prisoner.     Instead  of  protecting  and  providing  for 

[the  child,  as  it  was  his  duty  to  do,  he  allowed  it  to  remain  lying,  first 

f  at  his  door,  and  afterwards  in  the  road,  insufficiently  clothed,  and  at  a 

^  time  of  year  when  tlie  result  was  likely  to  be  the  child's  death.     I  think, 

,  therefore,  he  was  guilty  both  of  abandonment  and  exposure. 

Martin,  B.  I  am  of  the  same  opinion,  though  I  have  entertained 
some  doubt  upon  the  question.  The  statute  makes  it  an  offence  un- 
lawfully to  abandon  or  expose  a  child,  and,  construing  these  words 
according  to  their  natural  meaning,  I  thought  at  first  that  they  could 
only  appl.y  to  persons  who  had  had  the  actual  custody  and  possession 
of  the  child.  But  as  the  prisoner  here  was  the  father  of  the  child, 
entitled  to  its  custody  and  legally  bound  to  its  protection,  I  do  not 
differ  from  the  rest  of  the  Court. 

Bramwell,  B.  I  am  of  the  same  opinion.  If  the  person  who  had 
had  the  actual  custod}-  of  the  child,  and  who  left  it  at  its  father's  door, 
had  been  a  stranger  with  whom  it  had  been  left  at  nurse,  there  could, 
I  think,  have  been  no  doubt  about  the  case  ;  and  I  do  not  think  the 
fact  that  it  was  the  mother  makes  any  difference. 

Blackburn,  J.  I  am  of  the  same  opinion.  The  question  turns  upon 
the  meaning  of  the  words  "abandon  or  expose"  in  the  statute.  The 
Court,  before  whom  the  prisoner  was  tried,  were  right  in  directing  the 
acquittal  of  the  two  other  persons  accused,  because  there  was  no  legal 
duty  upon  them  to  protect  the  child,  but  onlv  a  duty  of  imperfect  obli- 
gation. But  the  father's  case  is  different ;  for  upon  him  there  is  a  strict 
legal  duty  to  protect  the  child.  And  when  the  child  is  left  in  a  position 
of  danger  of  which  he  knows,  and  from  which  he  has  full  [)ower  to 
remove  it,  and  he  neglects  his  duty  of  protection,  and  lets  the  child 
remain  in  danger,  I  think  this  is  an  exposure  and  abandonment  b}'  him. 
If  the  child  had  died,  the  facts  were  such  that  a  jury  might  have  con- 
victed him  of  murder,  though  they  might  have  taken  a  more  merciful 
view,  and  found  him  guilty  onl}-  of  manslaughter;  and  as  the  child, 
though  its  life  was  endangered,  did  not  die,  the  case  is  within  the 
section. 

Channell,  B.  My  Brother  Byles,  who  was  a  member  of  the  Court 
when  the  case  was  first  before  the  Court,  concurs  in  the  judgment; 
and,  having  had  an  opi)ortunity  of  considering  the  case  this  morning, 
I  am  of  the  same  opinion.  Conviction  affirmed. 


SECT.  II. J  REGINA    V.   DOWNES.  51 

REGINA  V.   DOWNES.   ' 
Crown  Case  Reserved.     1875. 

[Reported  13  Cox  C.  C.  111.] 

Case  reserved  for  the  opinion  of  this  court  bv  Blackburn,  J.^ 

1.  The  prisoner  was  indicted  at  tlie  Central  Criminal  Court  for  the 
manslaughter  of  Charles  Dovvnes. 

2.  It  appeared  on  the  trial  before  me  by  the  evidence  that  Charles 
Downes  was  an  infant  who,  at  the  time  of  his  death,  was  a  little  more 
than  two  3-ears  old.  The  child  had  h.een  ill.  and  wasting  away  for 
eight  or  nine  months  before  its  death.  The  prisoner,  who  resided  at 
"Woolwich,  was  the  father  of  the  deceased,  and  had  during  the  whole  of 
this  time  the  custody  of  the  child. 

3.  The  prisoner  w^as  one  of  a  sect  who  call  themselves  "  The  Peculiai* 
People." 

4.  During  the  whole  period  of  the  child's  illness  he  did  not  procure 
any  skilled  advice  as  to  the  treatment  of  the  child,  but  left  it  to  the 
charge  of  women  who  belonged  to  his  sect,  and  called  in  at  inter- 
vals George  Hurry,  an  engine  driver,  who  prayed  over  the  child  and 
anointed  it  with  oil. 

5.  The  reason  of  this  course  of  conduct  was  explained  b}'  George 
Hurry,  who  was  called  as  a  witness. 

6.  He  stated  that  the  Peculiar  People  never  called  in  medical  advice 
or  gave  medicines  in  case  of  sickness.  The}-  had  religious  objections 
to  doing  so.  They  called  in  the  elders  of  the  church,  who  prayed  over 
the  sick  person,  anointing  him  with  oil  in  the  name  of  the  Lord.  This 
he  said  the}'  did  in  literal  compliance  with  the  directions  in  the  1-ith 
and  loth  verses  of  the  fifth  chapter  of  the  ICpistle  of  St.  James,  and  in 
hope  that  the  cure  would  follow. 

7.  This  course  was  pursued  witli  regard  to  the  deceased  infant  during 
its  illness.  The  prisoner  consulted  the  witness  Hurry  as  to  what  w-as 
the  matter  with  the  child,  and  as  to  what  should  be  given  to  it.  The}' 
thougiit  it  was  suflfering  from  teething  ;  and  he  advised  the  parents  to 
give  it  port  wine,  eggs,  arrowroot,  an<l  other  articles  of  diet  which  he 
thought  suitable  for  a  child  suffering  from  such  a  complaint,  all  of  which 
wei'e  supplied  accoi-dingl}-.  There  was  no  evidence  that  tliis  treatment 
was  mischievous,  and  tliough  this  was  probabU'  not  logically  consistent 
with  the  doctrines  of  his  sect  as  described  by  him,  I  saw  no  reason  to 
doubt  that  it  was  all  done  in  perfect  sincerity. 

10.  It  was  admitted  on  the  part  of  the  prosecution  that  the  child 
was  kindly  treated,  kept  clean,  and  furnished  with  suflScient  food,  and 
nursed  kindly  by  the  mother  and  the  women  of  the  sect. 

1    Part  of  the  statement  of  the  case,  argument  of  counsel,  and  the  opinion  of  Mellob, 
J.,  are  omitted. 


52  EEGINA   V.   DOWNES.  [CHAP.  II. 

11.  Evidence  was  then  given  that  the  prisoner  had  sufficient  means 
to  procure  skilled  advice,  which  was  easilv  to  be  obtained  at  Woolwich. 
That  neither  he  nor  the  elder  had  an}'  competent  skill.  The  disease  of 
which  the  child  died  having  nothing  whatever  to  do  with  teething,  but 
being  chronic  inflammation  of  the  lungs  and  pleura,  which  was  of  long 
standing,  and  was  a  disease  which  might  have  been  cured  at  anv  time 
if  competent  advice  had  been  obtained,  probably  though  not  certainly, 
would  have  been  so  cured,  if  the  advice  had  been  called  in  in  the  earlj* 
stages  of  the  complaint. 

12.  The  prisoner  in  his  own  defence  said  that  he  sincerely  believed 
that  by  abstaining  from  calling  in  medical  aid' he  gave  the  child  the 
best  chance  of  recover}',  as,  if  he  showed  a  want  of  faith  he  thought  he 
could  not  rel}'  on  the  promise  which  he  thought  was  given. 

13.  The  prisoner  had  no  counsel. 

1.5.  I  told  the  jury  that  the  law  casts  on  the  father  who  has  the 
custody  of  a  helpless  infant  a  duty  to  provide  according  to  his  ability 
all  that  is  reasonably  necessary  for  the  child,  including,  if  the  child  is 
so  ill  as  to  require  it,  the  advice  of  persons  reasonabh'  believed  to  have 
competent  medical  skill,  and  that  if  death  ensues  from  the  neglect  of 
this  duty  it  is  manslaughter  in  the  father  neglecting  the  dut}'. 

I  told  them  that  I  did  not,  as  at  present  advised,  think  it  any  defence 
that  the  prisoner  sincerelj'  believed  that  he  ought  not  to  provide  such 
advice,  nor  that  he  believed  that  he  was  doing  the  best  for  the  child 
if  he  had  not,  in  fact,  competent  skill  and  knowledge  himself.  After 
explaining  this  more  fully  I  asked  the  jury  four  questions  which  to 
prevent  any  risk  of  mistake,  I  reduced  to  writing  and  handed  to  them. 
They  answered  all  in  the  affirmative. 

16.  The  following  is  a  cop}'  of  the  writing  I  handed  to  the  jury  and 
their  answers. 

Did  the  prisoner  neglect  to  procure  medical  aid  for  the  helpless 
infant  when  it  was  in  fact  reasonable  so  to  do,  and  he  had  the  ability? 
—  Yes. 

"Was  the  death  caused  by  that  neglect?  —  Yes. 

Unless  both  of  these  are  proved  he  is  not  guilty.  If  both  proved 
find  him  guilty,  but  then  say  further, 

Did  the  prisoner  bond  fide,  though  erroneously,  believe  that  medical 
advice  was  not  required  for  the  child?  —  Yes. 

Or  bona  fide  believe  that  it  was  wrong  to  call  in  medical  aid?  —  Yes. 

I  thereupon  directed  the  verdict  of  guilty  to  be  entered,  and  admitted 
the  prisoner  to  bail. 

The  question  for  the  opinion  of  this  court  is  whether  the  conviction 
so  obtained  on  this  direction  and  those  findings  should  stand  or  be  set 
aside.  Colin  Blackburn. 

No  counsel  was  instructed  to  argue  for  the  prisoner. 

D.  Straight,  for  the  prosecution.  The  31  &  32  Vict.  c.  122,  s.  37, 
makes  it  an  offence  for  a  parent  wilfully  to  neglect  to  provide  adequate 
food,  clothing,  medical  aid,  or  lodging  for  a  child  under  fourteen  years 


SECT.  II.]  REGINA   V.   DOWNES.  53 

of  age  in  his  custody', whereby  the  health  of  the  child  is,  or  has  been,  or 
is  hkelj'  to  be  serioiish'  injured.  [Mellok,  J.  The  words  of  the  sec- 
tion "wilfully  neglect"  mean  intentionally  or  purposely  omit  to  call 
in  medical  aid.  Lord  Coleridge,  C.  J.  In  Reg.  v.  Wagstatfe,  lU  Cox 
C.  C.  530,  an  indictment  for  manslaughter  against  parents  of  the  same 
religious  sect  as  the  prisoner  in  this  case  for  neglecting  to  provide 
medical  aid  for  the  child,  who  died  in  consequence  of  such  neglect, 
AVilles,  J.,  upon  similar  facts,  seems  to  have  been  of  opinion  that  tlie 
indictment  could  not  be  sustained,  but  that  was  before  the  31  &  32 
Vict.  c.  122,  s.  37,  passed.  And  in  the  case  of  Reg.  v.  Hines,^  before 
Pigott,  B.,  that  statute  was  not  brought  to  his  attention.] 

Coleridge,  C.  J.  I  think  that  this  conviction  should  be  affirmed. 
For  my  own  part,  but  for  the  statute  31  &  32  Vict.  c.  122,  s.  37, 1  should 
have  much  doubt  about  this  case,  and  should  have  desired  it  to  be  further 
argued  and' considered.  Perhaps  it  is  enough  to  say  that  the  opinions 
of  Willes,  J.,  and  Pigott,  B.,  are  deserving  of  grave  consideration.  Tlie 
statute  31  &,  32  Vict.  c.  122.  s.  37,  however,  is  a  strong  argument  in 
favor  of  the  conviction.     B}'  that  enactment  it  is  made  an  offence  pun- 

1  Reg.  V.  Hines  was  an  iudictment  against  Hines  for  unlawfully  endangering  the 
life  of  his  child,  aged  two  years,  by  omitting  to  provide  proper  and  sufficient  medicine. 
At  the  opening  of  the  case,  Baron  Pigott  expressed  a  very  strong  opinion  that  it  could 
not  be  sustained.  Mr.  Poland  referred  to  Russell  on  Crimes,  p.  80,  to  the  case  of  Keg. 
V.  Smith,  8  C.  &  P.,  and  to  Reg.  v.  Hurry,  Central  Criminal  Court  Reports,  vol.  76, 
p.  63.  After  hearing  the  evidence  in  the  case,  and  Mr.  Poland  in  support  of  it,  Pigott, 
B.,  said,  "I  am  of  opinion  that  there  is  no  case  to  go  to  the  jury  of  any  crime  ;  I 
think  it  is  one  of  those  cases  in  which  a  parent,  instead  of  being  guilty  of  anything 
like  culpable  negligence,  has  done  everything  that  he  believed  to  be  necessary  for  the 
good  of  his- child.  That  he  may  be  one  of  those  persons  who  have  very  perverted  views 
and  very  superstitious  views,  and  may  be  altogether  mistaking  that  doctrine  of  Scripture 
from  which  he  has  taken  liis  course  of  proceeding  in  this  case,  may  be  perfectly  true ; 
but  that  there  is  anything  in  the  nature  of  a  duty  neglected,  that  is,  a  duty  which  he 
believed  or  knew  to  be  such,  in  this  instance,  I  am  clearly  of  opinion  the  evidence  does 
not  show.  On  the  contrary,  he  believed  his  duty  to  be  in  the  direction  in  which  he 
acted,  and  he  carried  out  that  duty  to  the  utmost  of  his  ability.  He  may  altogether 
have  mistaken  what  his  duty  was  ;  still  I  believe  it  was  an  honest  mistake.  It  may  be 
an  ignorant  mistake,  in  all  probability  it  is  the  result  of  ignorance  and  superstition, 
but  certainlj'  there  is  not  a  trace  of  anything  like  an  intentional  omission  of  duty  or  a 
culpable  omission  of  duty  within  the  meaning  of  that  expression  as  used  in  the  criminal 
law.  I  am  clearly  of  opinion  that  it  is  not  a  case  for  an  indictment,  nor  a  case  for  a 
judge  to  deal  with  in  a  Criminal  Court.  If  the  Legislature  (as  they  have  done  in 
dealing  with  the  case  of  the  prevention  of  small  poxl,  are  minded  to  pass  a  law  on  the 
subject,  that  is  a  different  matter,  and  it  would  be  ipnte  right  then  that  persons  should 
be  compelled  to  conform  to  it,  although  they  themselves  may  personally  object  to  it, 
because  it  is  the  law  of  the  society  in  which  they  live,  and  they  are  bound  by  that  law 
if  society  chooses  to  enact  it.  But  I  am  clearly  of  opinion  that  no  judge  sitting  in  a 
Criminal  Court,  without  any  direction  or  enactment  of  the  Legislature,  would  be  justi- 
fied in  saying  that  a  parent  who  exercised  his  best  judgment,  though  a  perverted  one, 
in  dealing  with  his  child  by  nursing  and  care  instead  of  calling  in  a  doctor  to  apply 
blisters,  leaches,  and  calomel,  was  guilty  of  criminal  negligence.  I  may  say  that  I  had 
an  opportunity  before  coming  into  court,  knowing  that  this  case  was  coming  on,  of 
speaking  of  it  to  Mr.  Justice  Quain,  and  the  learned  Recorder,  and  they  quite  concur 
in  the  view  I  have  propounded  and  upon  which  I  am  acting." 


54  REGINA   V.   INSTAN.  [CHAP.  II. 

ishable  suinmiiiily  if  any  parent  wilfully  neglects  to  provide  (inter  alia) 
medical  aid  for  his  cliild  being  in  his  custody  under  the  age  of  fourteen 
years,  whereby  the  health  of  such  child  shall  have  been  oi  shall  be 
likely  to  be  seriously  injured.  That  enactment  I  understand  to  mean 
that  if  any  parent  intentionally,  i.  e.,  with  the  knowledge  that  medical 
aid  is  to  be  obtained,  and  with  a  deliberate  intention  abstains  from  pro- 
viding it,  he  is  guilty  of  an  offence.  Unchn-  that  enactment  upon  these 
facts  the  prisoner  would  clearly  have  been  guilty  of  the  offence  created 
by  it.  l^  the  death  of  a  person  results  from  the  culpable  omission  of  a 
breach  of  duty  created  b}-  the  law,  the  death  so  caused  is  the  subject  of 
manslaughter.  In  this  case  there  was  a  duty  imposed  by  the  statute 
on  the  prisoner  to  provide  medical  aid  for  his  infant  child,  and  there 
was  the  deliberate  intention  not  to  obey  the  law  ;  whether  proceeding 
from  a  good  or  bad  motive  is  not  material.  The  necessary  ingredient 
to  constitute  the  crime  of  manslaughter  existed,  therefore,  in  this  case ; 
and  for  that  reason  this  conviction  ought  to  be  affirmed. 

Bkamwei>l,  B.  I  am  of  the  same  opinion.  The  31  &  32  Vict.  c.  122, 
s.  37,  has  imposed  a  positive  and  absolute  duty  on  parents,  whatever 
their  conscientious  or  superstitious  opinions  ma}'  be,  to  provide  medical 
aid  for  their  infant  children  in  their  custody.  The  facts  show  that  the 
prisoner  thought  it  was  irreligious  to  call  in  medical  aid,  but  that  is  no 
excuse  for  not  obeying  the  law. 

Mellor  and  Grove,  JJ.,  and  Pollock,  B.,  concurred. 

Conviction  ajfirmed. 


REGINA   V.   INSTAN. 
Crown  Case  Reserved.     1893. 

[Reported  [1893]  1  Q.  B.  450.] 

Case  stated  by  Day.  J. 

Kate  Instan  was  tried  before  me  at  the  last  assizes  for  the  county  of 
Worcester  upon  a  charge  of  feloniously  killing  one  Ann  Hunt.  The 
prisoner,  who  is  between  tliirt}-  and  foity  years  of  age  and  unmarried, 
had  no  occupation  and  no  means  of  her  own  of  living.  iShe  -was  a 
niece  of  the  deceased. 

At  the  time  of  the  committal  of  the  alleged  offence,  and  for  some 
time  previous  thereto,  she  had  been  living  with  and  had  been  main- 
tained by  the  deceased.  Deceased  was  a  woman  of  some  seventy- 
three  years  of  age,  and  until  a  few  weeks  before  her  death  was  healthy 
and  able  to  take  care  of  herself.  She  was  possessed  of  a  small  life 
income,  and  had  in  the  house  in  which  she  lived  some  little  furniture, 
and  a  few  other  articles  of  trifling  value.  The  two  women  lived  to- 
gether in  a  house  taken  by  the  deceased  ;  no  one  lived  with  them  or 
In  anv  wav  attended  to  them. 


SECT.  II.]  REGINA    V.   INSTAN.  55 

The  deceased  shortl}-  before  her  death  suffered  from  gangrene  in 
tiie  log,  wliich  rendered  her  during  the  hist  ten  days  of  her  life  quite 
unable  to  attend  to  herself  or  to  move  about  or  to  do  anything  to  pro- 
cure assistance.  No  one  but  the  pi'isoner  had  previous  to  the  death 
any  knowledge  of  the  condition  in  which  her  aunt  thus  was.  The 
prisoner  continued  to  live  in  the  house  at  the  cost  of  the  deceased, 
and  took  in  the  food  supplied  by  the  tradespeople ;  l)ut  does  not 
appear  to  have  given  any  to  the  deceased,  and  she  certainl}-  did  not 
give  or  procure  any  medical  or  nursing  attendance  to  or  for  her.  or 
give  notice  to  any  neighbor  of  her  condition  or  wants,  although  she 
had  abundant  opportunity  and  occasion  to  do  so. 

The  body  of  the  deceased  was  on  August  2,  while  the  prisoner  was 
still  living  in  the  house,  found  much  decomposed,  partialh'  dressed  in 
her  day  clothes,  and  lying  parth'  on  the  ground  and  partly  prone  upon 
the  bed.  The  death  probablv  occurred  from  four  to  seven  days  before 
August  3,  the  date  of  the  post-mortem  examination  of  the  bod}'.  The 
cause  of  death  was  exhaustion  caused  by  the  gangrene,  but  substan- 
tially accelerated  by  neglect,  want  of  food,  of  nursing,  and  of  medical 
attendance  during  several  days  previous  to  the  death.  All  these  wants 
could  and  would  have  been  supplied  if  any  notice  of  the  condition  of 
the  deceased  had  been  given  by  the  prisoner  to  any  of  the  neiglibors, 
of  whom  there  were  several  living  in  adjoining  houses,  or  to  the  rela- 
tions of  the  deceased,  who  lived  within  a  few  miles.  It  was  proved 
that  the  prisoner,  while  the  deceased  must  have  been  just  about  dying, 
had  conversations  with  neighbors  about  the  deceased,  but  did  not 
avail  herself  of  the  opportunities  thus  afforded  of  disclosing  the  con- 
dition in  which  she  then  was. 

At  the  close  of  the  case  it  was  objected  on  behalf  of  the  prisoner 
that  there  was  no  evidence  of  an}'  legal  duty  such  as  would  bind  the 
prisoner  to  give  or  to  procure  any  food,  or  nursing,  or  attendance  to 
or  for  the  deceased,  or  to  give  any  notice  to  an}-  one  that  such  was 
required.  I  thought  it  better  not  to  stop  the  case,  but  to  leave  it  to 
the  jur}'  to  say  whether,  having  regard  to  the  circumstances  under 
which  the  prisoner  lived  with  the  deceased,  and  continued  to  occup}' 
the  house,  and  to  take  the  food  provided  at  the  expense  of  the  de- 
ceased, while  the  deceased  was,  as  she  knew,  unable  to  communicate 
with  any  other  person  and  thus  to  procure  necessaries  for  hei'self.  the 
prisoner  did  or  did  not  impliedly  undertake  with  the  deceased  either  to 
wait  upon  and  attend  to  her  herself  or  to  communicate  to  persons  out- 
side the  house  the  knowledge  of  her  helpless  condition  ;  and  I  told 
them  that  if  they  came  to  the  conclusion  that  she  did  so  undertake, 
and  that  the  death  of  the  deceased  was  substantially  accelerated  b}' 
her  failure  to  carry  out  such  undertaking,  they  might  find  the  prisoner 
guilty  of  manslaughter,  but  that  otherwise  they  should  acquit  her. 
The  jury  found  the  pi'isoner  guilt}'. 

If  the  facts  above  stated  do  not  afford  evidence  of  the  existence  ol 
an}'  such  undertaking  or  duty,  then  the  conviction  is  to  be  quashed  ; 
if  otherwise,  it  is  to  stand. 


56  KEGINA   V.   INSTAN.  [CHAP.  ir. 

Viichell,  for  the  prisoner.  There  was  no  legal  duty  imposed  upon 
the  prisoner  to  provide  food  or  attendance  for  the  deceased  during  the 
last  ten  days  of  her  life  ;  there  was  certainly  no  such  duty  before  that 
time,  for  the  deceased  was  the  head  of  the  household  and  able  to  help 
herself.  Such  a  duty  as  is  here  sought  to  be  enforced  can  onU'  arise 
b}'  virtue  of  a  statute  or  a  contract,  or  at  common  law.  It  must  be 
conceded  that  there  was  no  statutory  duty,  neither  was  there  any  dut}' 
at  common  law  ;  there  is  no  authority  for  the  existence  of  any  such 
conunon  law  duty  in  the  case  of  a  person  of  full  age  ;  in  such  a  case 
the  duty  can  onlj-  arise  in  respect  of  an  undertaking,  express  or  im- 
plied. In  Rex  V.  Friend  it  wa*  held  to  be  an  indictable  offence  to 
refuse  or  neglect  to  provide  sufficient  food,  bedding,  &c.,  to  an  infant 
of  tender  years,  unable  to  provide  for  and  take  care  of  itself,  whom  a 
man  was  obliged  by  duty  or  contract  to  provide  for ;  but  the  decision 
was  in  terms  confined  to  such  cases,  and  the  indictment  was  held  to 
be  defective  in  not  stating  the  child  to  be  of  tender  years  and  unable 
to  provide  for  itself.  In  Reg.  v.  Shepherd  it  was  held  that  there 
was  no  duty  upon  a  woman  to  procure  a  midwife  for  her  daughter,  a 
girl  of  eighteen,  and  that  she  could  not  be  convicted  of  manslaughter 
for  omitting  to  do  so.  In  his  judgment,  Erie,  C.  J.,  sa3's :  "Here  the 
girl  was  beyond  the  age  of  childliood,  and  w^as  entirely  emancipated." 
In  the  case  of  a  pei'son  of  full  age  such  a  duty  ma^'  indeed  arise  out 
of  an  express  or  implied  undertaking :  Reg.  v.  Marriott,  where  a 
man  was  convicted  of  the  manslaughter  of  an  elderly  and  infirm 
woman,  whom  he  had  taken  home  to  live  in  his  house,  promising  to 
make  her  happ}'  and  comfortable.  In  summing  up  in  that  case,  Pat- 
teson,  J.,  said :  "  The  cases  which  have  happened  of  this  description 
have  been  generally  cases  of  children  and  servants,  where  the  duty 
was  apparent.  This  is  not  such  a  case ;  but  it  will  be  for  you  to  say 
whether,  from  the  wa}'  in  which  the  prisoner  treated  her,  he  had  nut 
by  wa}'  of  contract,  in  some  way  or  other,  taken  upon  him  the  per- 
formance of  that  duty  which  she,  from  age  and  infirmity,  was  inca- 
pable of  doing."  In  the  present  case  there  was  no  evidence  of  any 
contract  or  undertaking  by  the  prisoner  to  take  care  of  her  aunt, 
though  no  doubt  she  was  under  a  moral  obligation  to  do  so. 

[Hawkins,  J.  Why  should  not  a  contract  be  implied  from  such  cir- 
cumstances as  those  in  this  case?  Suppose  two  people  agreed  to  live 
together  for  their  mutual  benefit,  would  not  the  mere  fact  of  their  living 
together  be  evidence  from  which  an  undertaking  might  be  implied?] 

[Cave,  J.  When  the  prisoner  took  in  food  paid  for  with  the  de- 
ceased's mone}',  she  had  no  right  to  appl}'  it  all  for  her  own  use.  Did 
she  not  then  undertake  a  duty  towards  the  deceased?] 

Not  b}'  wa}'  of  contract  so  as  to  raise  a  legal  duty  ;  it  was  nothing 
more  than  a  duty  of  imperfect  obligation. 

Lord  Coleridge,  C.  J.  We  are  all  of  opinion  that  this  conviction 
must  be  affirmed.  It  would  not  be  correct  to  say  that  ever3'  moral 
obligation  involves  a  legal  duty  ;  but  every  legal  duty  is  founded  on  a 


SECT.  U.]  REX   V.   PITTWOOD.  57 


moral  obligation.  A  legal  common  law  duty  is  nothing  else  than  the 
enforcing  by  law  of  that  which  is  a  moral  obligation  without  legal 
enforcement.  There  can  be  no  question  in  this  case  that  it  was  the 
clear  duty  of  the  prisoner  to  impart  to  the  deceased  so  much  as  was 
necessary  to  sustain  life  of  the  food  which  she  from  time  to  time  took 
in,  and  which  was  paid  for  by  tlie  deceased's  own  money  for  the  pur- 
IDose  of  the  maintenance  of  herself  and  the  prisoner ;  it  was  only 
through  tlie  instrumentality  of  the  prisoner  that  the  deceased  could 
get  the  food.  There  was,  therefore,  a  common  law  duty  imposed  upon 
the  prisoner  wliich  she  did  not  discliarge. 

Nor  can  there  be  any  question  that  the  failure  of  the  prisoner  to  dis- 
charge her  legal  dut}^  at  least  accelerated  the  death  of  the  deceased,  if 
it  did  not  actually  cause  it.  There  is  no  case  directly  in  point ;  but  it 
would  be  a  slur  upon  and  a  discredit  to  the  administration  of  justice  in 
this  country  if  tliere  were  any  doubt  as  to  the  legal  principle,  or  as  to 
the  present  case  being  within  it.  The  prisoner  was  under  a  moral 
obligation  to  the  deceased  from  wliich  arose  a  legal  duty  towards  her ; 
that  legal  duty  the  prisoner  has  wilfully  and  deliberately  left  unper- 
formed, witli  the  consequence  that  there  has  been  an  acceleration  of 
the  death  of  the  deceased  owing  to  the  non-performance  of  that  legal 
duty.  It  is  unnecessary  to  say  more  than  that  upon  the  evidence  this 
conviction  was  most  properly  arrived  at. 

Hawkins,  Cave,  Day,  and  Collins,  JJ.,  concurred. 

Conviction  affirmed. 


REX  V.  PITTWOOD. 
Taunton  Assizes.     1902. 

[Reported  19  Times  Law  Rep.  37.] 

Philip  Pittwood  was  charged  with  the  manslaughter  of  Thomas 
White,  and  a  coroner's  inquisition  for  the  same  offence  was  also 
returned. 

It  appeared  that  the  prisoner  occupied  a  hut  as  a  gate-keeper  on  the 
Somerset  and  Dorset  Railway,  near  Glastonbury.  His  duties  were  to 
keep  the  gate  shut  whenever  a  train  was  passing  along  the  line,  which 
was  a  single  line,  and  not  many  trains  used  to  pass  during  the  day. 
His  hours  of  duty  were  from  7  in  the  morning  till  7  p.  m.  On  July  18, 
at  about  2.45  in  the  afternoon,  White  was  in  a  hay  cart  crossing  the 
line  with  several  others,  when  a  train  came  up  and  hit  the  cart,  W^hite 
being  struck  and  killed.  Another  man  was  also  seriously  injured,  while 
the  three  remaining  men,  by  jumping  out  of  the  cart,  saved  their  lives. 
A  number  of  witnesses  were  called  to  show  that  it  was  really  only  an 


58  REX   V.    PITTWOOD.  [CHAP.  II. 

accommodation  road,  and  not  a  public  road.  It  was  shown  that  the 
train  was  going  at  a  very  fair  rate,  and  it  was  impossible  to  stop  it,  as 
the  cart  was  on!}-  seen  by  the  driver  a  few  yards  from  his  train.  The 
prisoner  gave  evidence  before  the  coroner,  and  his  deposition  was  put 
in,  and  in  it  he  stated  that  he  had  put  the  gate  open  about  ten  minutes 
before  to  let  a  cart  pass,  and  iiad  propped  it  open,  had  forgotten  to 
sliut  it  again,  and  had  gone  to  have  some  luncheon.  For  the  defence 
it  was  suggested  that  there  was  only  mere  inattention  on  the  [oart  of 
the  prisoner,  and  no  criminal  negligence.  The  jury  returned  a  verdict 
of  f/uilty.  ]\Ir.  Justice  Wright  passed  a  sentence  of  three  weeks'" 
imprisonment  in  the  second  division,  but  allowed  the  prisoner  out  on 
his  own  recognizance  to  hear  the  points  of  law  to  be  argued  in  arrest  of 
judgment. 

Mr.  Simon,  on  behalf  of  the  prisoner,  submitted  that  there  was  no 
evidence  of  negligence  to  go  to  the  jury  ;  that  negligence  in  law  is 
want  of  due  care  ;  that  in  the  present  case  the  prisoner  was  not  bound 
to  take  any  care  ;  that  it  was  necessary  that  the  duty  to  take  care 
should  be  towards  the  person  who  complained ;  and  that,  in  the  pres- 
ent case,  the  prisoner  only  contracted  with  his  employers,  —  the  rail- 
way company.  He  quoted  Reg.  v.  Smith,  11  Cox,  210,  decided  b}^ 
Mr.  Justice  Lush.  Further,  he  submitted  that  the  man  who  was  killed 
was  not  the  man  for  whom  the  gate  was  opened.  [Mr.  Justice 
AVright.  —  The  jury  have  not  had  to  consider  whether  this  was  an 
accommodation  road  or  not.  That  question  could  not  be  left  to 
them.] 

Mr.  Justice  Wright,  without  calling  upon  the  prosecution,  gave 
judgment.  He  said  he  was  clearly  of  opinion  that  in  this  case  there 
was  gross  and  criminal  negligence,  as  the  man  was  paid  to  keep  the 
gate  shut  and  protect  the  public.  In  his  opinion  there  were  three 
grounds  on  which  the  verdict  could  be  supported:  (Ij  There  might  be 
cases  of  misfeasance  and  cases  of  mere  non-feasance.  Here  it  was 
quite  clear  there  was  evidence  of  misfeasance,  as  the  prisoner  directly 
contributed  to  the  accident.  (2)  A  man  might  incur  criminal  liability 
from  a  duty  arising  out  of  contract.  The  learned  Judge  quoted  in  sup- 
port of  this,  Reg.  v.  Nicholls,  18  Cox,  75  ;  Reg.  r.  Elliott,  16  Cox,  710  ; 
Reg.  V.  Benge,  4  F.  &  F.  504  ;  Reg.  r.  Hughes,  Dears.  &  B.  C.  C.  248. 
The  strongest  case  of  all  was,  perhaps,  Reg.  r.  Instan  (1893),  1  Q.  B. 
450,  and  that  case  clearly  governed  the  present  charge.  (3)  With 
regard  to  the  point  that  this  was  only  an  occupation  road,  he  clearly 
held  that  it  was  not.  as  the  company  had  assumed  the  liability  of  pro- 
tecting the  public  whenever  they  crossed  the  road.  There  was  no 
ground  for  stating  a  case  on  any  of  the  grounds  urged  on  behalf  of 
the  prisoner. 

The  prisoner  thereupon  surrendered  to  undergo  the  sentence  that 
had  been  passed  ui)on  him. 


SECT.  ILI  ANDEKSON   V.   STATE.  59 


ANDERSON   r.   STATE. 

Texas  Court  of  Appeals.     1889. 

[Reported  27  Tex.  App.  177.] 

The  conviction  in  this  case  was  for  negligent  homicide,  and  the 
penalty'  assessed  against  each  of  the  appellants  was  a  fine  of  two 
hundred  and  fift}'  dollars. 

The  indictment  impleaded  O.  Torgerson,  engineer,  J.  A.  DeCogne, 
fireman,  and  the  appellants  as  brakemen  on  engine  number  eleven  of 
the  Houston,  East  &  West  Texas  Railway  Company,  charging  them 
with  negligent  homicide  of  the  first  degree,  and  alleging  in  substance 
that  on  the  seventh  day  of  February,  1887,  while  engaged  as  workmen 
in  running  said  engine  and  tender  on  said  railroad,  said  Torgerson, 
DeCogne,  Anderson,  and  Woods  did  back  said  engine  and  tender  negli- 
gently  and  carelessly,  without  ringing  the  bell  or  blowing  the  whistle, 
and  without  giving  any  warning,  and  without  first  looking  to  see  if  any 
person  was  likely  to  be  injured  thereby,  and  by  said  negligence  and 
carelessness  one  Sing  Morgan  was  struck  b}'  said  engine  and  tender  so 
run,  and  the  death  of  said  Morgan  was  caused  by  said  negligence  and 
carelessness  —  the  said  Morgan  being  at  tlie  time  in  a  position  to  be 
struck  b}'  said  engine  and  tender  which  fact  would  have  been  known 
by  said  Torgersoiy,  DeCogne,  Anderson,  and  Woods  if  they  had  used 
that  degree  of  care  and  caution  whicii  a  man  of  ordinary  prudence 
would  use  under  like  circumstances,  there  being  then  and  there  an 
apparent  danger  of  causing  the  death  of  said  Morgan  and  of  other 
persons  passing  on  said  railroad  and  higiiway.^ 

WiLLSON.  J.  .  .  .  As  we  view  the  evidence  and  the  law  applicable 
thereto,  this  conviction  is  not  warranted.  Tliese  appellants  were  brake- 
men.  They  had  no  control  whatever  of  said  engine  and  tender.  They 
were  riding  upon  the  same  for  the  purpose  merely  of  performing  their 
specific  duties  as  brakemen,  wliicii  duties  had  no  connection  with  or 
relation  to  the  homicide.  It  was  the  exclusive  dutv  of  the  engineer 
and  fireman  to  operate  said  engine  carefully  ;  to  look  out  for  obstruc- 
tions upon  the  track  :  to  give  signals  of  danger  when  necessary.  With 
these  duties  appellants  were  in  no  way  coucerned.  They  had  no  right 
to  start  the  engine  in  motion,  to  blow  the  whistle,  to  ring  the  bell,  to 
stop  the  engine,  or  otherwise  to  control  its  movements.  They  per- 
formed no  act  whicli  connected  them  with  tlie  deatli  of  the  child.  It  is 
only  for  a  supposed  omission  of  duty  on  their  part  that  the}'  have  been 
convicted  of  negligent  homicide.  Thev  omitted  to  look  out  for  obstruc- 
tions  on  the  track.  They  might  have  seen  the  child  in  time  to  save  its 
life,  but  they  omitted  to  see  him.  Or  if  they  did  see  him  they  omitted 
to  stop  the  train,  or  to  signal  tlie  engineer  to  stop  it. 


1  The  evi'leiice  and  part  of  the  o]iiiiion  dealiuc;  with  tlie  form  of  the  iiidic-tment 
and  the  adinis.sibility  of  certaiu  evidence  are  omitted.  —  Ed. 


60  ANDERSON   V.    STATE.  [CHAP.  II. 

Were  these  omissions  criminal,  within  the  meaning  of  the  statute 
defining  negligent  homicide?  We  think  not,  because,  to  constitute 
criminal  negligence  or  carelessness,  there  must  be  a  violation  of  some 
duty  imposed  by  law  directl}'  or  impliedly,  and  with  which  duty  the 
defendant  is  especiall}'  charged.  Mr.  Wharton  says  :  "  Omissions  are 
not  tlie  basis  of  penal  action,  unless  the3'  constitute  a  defect  in  the  dis- 
charge of  a  responsibility  with  which  the  defendant  is  especially  in- 
vested." (Wharton  on  Horn.  sec.  72.)  Again,  this  author  sajs,  in 
treating  of  omissions  by  those  charged  with  machinerj-,  etc.:  "The 
responsibility  of  the  defendant  which  he  thus  fails  to  discharge  must 
be  exckisive  and  peremptory-.  A  stranger  who  sees  that  unless  a  rail- 
way* switch  is  turned,  or  the  car  stopped,  an  accident  may  ensue,  is  not 
indictable  for  not  turning  the  switch  or  stopping  the  par.  The  reason 
for  this  is  obvious.  To  coerce,  b}'  criminal  prosecutions,  every  person 
to  supervise  all  other  persons  and  things,  would  destroy  that  division 
of  labor  and  responsibility  b}'  which  alone  business  can  be  safely  con- 
ducted, and  would  establish  an  industrial  communism,  by  which  private 
enterprise  and  private  caution  would  be  extinguished.  Nothing  can  be 
effectually  guarded  when  everything  is  to  be  guarded  b3-  everybody. 
No  machinery  could  be  properlv  worked  if  every  passerby  were  com- 
pelled by  the  terror  of  a  criminal  prosecution  to  rush  in  and  adjust 
anything  that  might  appear  to  him  to  be  wrong,  or  which  was  wrong, 
no  matter  how  it  might  happen  to  appear.  By  this  wild  and  irre- 
sponsible interference  even  the  simplest  forms  of  machinery  would 
be  speedily  destroyed."  (Ibid.  sec.  80.)  And  upon  the  subject  of 
omission  to  give  warning  of  danger,  the  same  author  says  :  "  The  test 
here  is,  is  such  notice  part  of  an  express  duty  with  which  the  defend- 
ant is  exclusiveh'  charged?  If  so,  he  is  responsible  for  injur}-  which 
is  the  regular  and  natural  result  of  his  omission  ;  but  if  not  so  bound, 
he  is  not  so  responsiljle."     (Ibid.  sec.  81.) 

These  rules  of  the  common  law  are  not  inconsistent  with  our  statute, 
but  are  in  harmony  therewith,  as  we  construe  it.  As  we  understand 
both  the  common  law  and  the  statute,  there  can  be  no  criminal  negli- 
gence or  carelessness  by  omission  to  act,  unless  it  was  the  especial 
dut}-  of  the  party  to  perform  the  act  omitted.  Negligence  or  careless- 
ness by  omission  presupposes  dut}-  to  perform  the  act  omitted,  and  can 
not,  in  law,  be  imputed  except  upon  the  predicate  of  duty. 

In  this  case  the  evidence  is  uncontradicted  and  clear  that  appellants 
did  not  do  any  act  or  omit  to  do  any  legal  duty,  with  reference  to  the 
deceased  child.  In  law  thev  are  no  more  responsible  for  the  death 
of  the  child  than  any  other  person  who  was  present  and  witnessed  the 
accident.  They  were  strangers  to  the  transaction,  in  contemplation 
of  the  law,  because  tiiey  were  not  charged  with  any  duty  with  respect 
to  it. 

We  are  of  the  opinion  that  the  judgment  of  conviction  is  contrary  to 
the  law  and  the  evidence,  and  therefore  said  judgment  is  reversed  and 
the  cause  is  remanded.  Reversed  and  remanded. 


SECT.  II.J  BEATTIE  V.   STATE.  61 


BEATTIE   V.    STATE. 

Supreme  Court  of  Arkansas.     1904. 

[Reported  73  Ark.  428.] 

George  Beattie,  a  resident  of  Missouri,  was  arrested,  tried  and  con- 
victed on  a  charge  that,  being  a  resident  of  the  State  of  Missouri,  he 
did,  in  the  county  of  Sharp  and  State  of  Arliansas,  in  Ma^',  1904,  herd, 
graze,  and  permit  to  run  at  large  about  nineteen  head  of  cattle.  He 
was  convicted,  and  fined  $100  before  a  justice  of  the  peace.  He  took 
an  appeal  to  the  Circuit  Court,  and  on  the  trial  there  the  Circuit^Judge 
made  the  following  findings  of  law  and  fact : 

"  In  this  case  I  find  that  the  defendant,  George  Beattie,  was  a  non- 
resident of  the  State  of  Arkansas,  and  was  a  resident  of  the  State 
of  Missouri ;  that  he  owned  land  in  the  latter  State  ;  that  his  land,  or 
at  least  a  part  of  it,  had  as  its  south  line,  the  State  line,  and  that  his 
residence  was  in  the  State  of  Missouri  about  one-half  of  one-quarter 
of  a  mile  north  of  the  State  line.  The  evidence  further  shows  that  he 
owned  eighty  acres  of  land  in  Arkansas.  The  testimony  shows  that 
he  would  turn  his  cattle  out  of  the  inclosure  in  Missouri,  knowing  that 
the}'  would  go  across  the  line  in  the  State  of  Arkansas  ;  that  he  would 
go  and  drive  them  out  of  said  State  for  the  purpose  of  salting  them, 
and  then  turn  them  out  when  they  would  go  across  into  Arkansas,  and 
that  this  was  done  repeatedly  during  the  year  prior  to  the  filing  of  the 
information  herein. 

"  I  find  that  if  defendant  turned  his  stock  on  the  range  in  Missouri 
with  no  one  to  look  after  them,  knowing  that  thev  were  in  the  habit  of 
going  into  Arkansas,  and  that  the}'  did  go  into  Arkansas,  he  would 
be  guilty  of  a  violation  of  this  statute,  although  he  ma}'  have  been  in 
the  State  of  Missouri  during  the  time. 

"  I  further  find  that  if  he  thus  permitted  his  stock  to  enter  the  State 
of  Arkansas,  and  went  into  said  State  for  the  purpose  of  driving  them 
home  to  be  salted,  and  then  turned  them  out  again,  he  would  be 
guilty." 

The  court  also  declared  the  law  to  be  that  the  fact  that  a  non- 
resident owned  land  in  this  State  did  not  authorize  him  to  herd,  graze, 
or  permit  his  stock  to  run  at  large  in  this  State,  though  he  had  the 
right  to  pasture  them  on  his  own  land. 

The  court  gave  other  instructions  of  law  on  motion  of  the  State  and 
defendant,  but  they  need  n6t  be  set  out  here,  for  the  substance  of  them 
is  contained  in  the  above  findings. 

The  court  found  that  defendant  was  guilty,  and  assessed  his  fine  at 
$100.     Defendant  appealed. 


62      KING   V.    INTERSTATE    CONSOLIDATED    STREET    liY.    CO.      [CHAP.    II. 

RiDDiCK,  J.  This  is  an  appeal  from  a  judgment  convicting  a  non- 
resident defendant  and  assessing  a  fine  of  $100  against  him  for  per- 
mittino;  his  cattle  to  run  at  large  in  this  State. 

Now,  it  is  clear  that  our  statute  on  that  subject  does  not  forbid 
a  nonresident,  whose  cattle  have  strayed  or  come  of  their  own  voli- 
tion into  this  State,  from  driving  them  out  again.  It  is  equally  clear 
that  it  does  not  subject  a  resident  of  Missouri,  who  turns  his  cattle 
at  large  in  that  State,  to  a  criminal  prosecution  and  fine  if  the  cattle 
afterwards  come  into  this  State;  for  the  Legislature  of  tliis  State  has 
no  power  to  punish  a  resident  of  Missouri  for  a  lawful  act  done  in  that 
State.  Nor  do  we  thiuli  that  it  would  alter  the  case  if  the  defendant 
knew,  at  the  time  he  turned  them  at  large  in  Missouri,  that  they 
would  probably  come  into  Arkansas,  for  the  Legislature  of  this  State 
cannot  compel  the  residents  of  Missouri  who  live  near  the  State  line  to 
keep  tlieir  cattle  in  inclosed  lots  or  fields  in  order  to  prevent  them 
from  coming  into  this  State,  and  we  do  not  think  that  was  the  inten- 
tion of  this  statute  to  do  so.  The  people  of  Missouri  have  the  right  to 
permit  their  cattle  to  run  at  large  in  that  State,  unless  forbidden  by 
the  law  of  that  State;  and  if  the  people  of  this  State  desire  to  keep 
such  cuttle  from  entering  this  State,  the}'  can  do  so  by  putting  up 
a  fence  along  the  line  between  this  State  and  Missouri  or  by  a  statute 
authorizing  the  cattle  of  nonresidents  which  stra}'  into  this  State  to  be 
impounded  and  kept  at  the  costs  of  the  owners.  But  to  undertake  to 
arrest  and  fine  a  resident  of  Missouri  because  he  does  not  prevent  his 
cattle  from  straying  into  this  State  would  be  to  assume  a  jurisdiction 
over  the  residents  of  that  State  never  intended  by  the  statute  and  be- 
yond the  power  of  the  Legislature  to  confer. 

The  evidence  in  the  case  was  conflicting,  and  some  of  it,  if  true, 
might  have  warranted  a  finding  that  the  defendant  was  guilty,  but  the 
finding  of  facts  by  the  court  has  evidence  to  support  it,  and,  taking 
that  as  true,  no  crime  was  committed. 

The  judgment  will  therefore  b©  reversed,  and  the  cause  remanded 
for  a  new  trial. 


KING  V.  INTERSTATE  CONSOLIDATED  STREET 

RAILWAY  CO. 

Supreme  Court  of  Rhode  Island,  1902. 

[Reported  23  R.  I.  583.] 

TiLLiNGHAST,  J.  These  cases,  which  are  substantially  alike,  are 
before  us  on  demurrers  to  the  declarations.  We  w^ill  consider  the 
first-named  case.  It  is  trespass  on  the  case  for  negligence,  and  sets  out, 
in  substance,  in  the  first  count  thereof,  that  the  plaintiff  was  em- 
ployed by  the  defendant  corporation  to  help  remove  snow  from  its 


SECT.  II.]   KING  V.    INTERSTATE  CONSOLIDATED  STREET  RY.  CO.   63 

tracks  between  Pawtucket,  R.  I.,  and  Attleboro,  Mass.,  in  very  cold 
weather  in  the  month  of  February,  1899;  that  the  work  had  to  be  done 
over  a  wide  tract  of  open  country,  remote  from  dwelUng  liouses  and 
other  habitations;  that  the  defendant  knew  that  the  work  of  remov- 
ing said  snow  and  ice  from  its  tracks  and  roadbed  in  said  open  country, 
in  view  of  the  cold  and  stormy  weather,  was  very  trying,  exliausting, 
and  dangerous  to  the  laborers  engaged  therein,  and  that  it  was  the 
duty  of  the  defendant  corporation  to  furnish  sufficient  food  and  slielter 
to  the  plaintiff  during  the  continuance  of  said  work,  and  to  provide 
for  the  safety  of  the  plaintiff  while  so  employed,  and  to  carry  him  to 
his  home  in  Pawtucket  when  returning  from  said  work;  that  he  was 
ignorant  of  the  danger  attending  said  work  in  the  open  country  in 
cold  and  stormy  weather,  and  that  while  engaged  for  24  hours  therein, 
and  while  in  the  exercise  of  due  care,  and  in  ignorance  of  the  peril  to 
which  he  was  exposed,  both  of  his  feet  were  frozen,  of  which  fact  he 
informed  the  defendant's  agents  and  servants,  and  requested  them  to 
carry  him  to  his  home,  in  Pawtucket,  but  that  the  defendant,  its  agents 
and  servants,  well  kno^\^ng  the  premises,  carelessly  and  negligently 
failed  to  pro\ide  food  and  shelter  for  the  plaintiff;  and  that  the  freezing 
of  his  feet  was  due  to  the  failure  of  the  defendant  corporation,  its 
agents  and  servants,  to  supply  him  with  food  and  shelter  while  so 
engaged.  It  is  further  alleged  that,  in  consequence  of  the  freezing 
of  plaintiff's  feet,  they  had  to  be  amputated,  whereby  he  was  disabled, 
etc.  The  second  count  differs  from  the  first  in  that  it  alleges  that, 
without  fault  on  his  part,  both  of  his  feet  were  frozen,  of  which  fact 
he  informed  the  defendant,  its  agents  and  servants,  and  requested  them 
to  carry  him  to  his  home,  in  Pawtucket,  which  they  carelessly  and 
negligently  refused  to  do,  and,  being  unable  to  procure  passage  to 
his  home,  he  was  obliged  to  make  his  way  there  on  his  hands  and 
knees,  and  was  engaged  in  making  said  journey  from  7  o'clock  in  the 
evening  until  8  o'clock  the  next  morning.  And  he  avers  that  in  con- 
sequence thereof,  and  without  fault  on  his  part,  his  feet  were  so  badly 
frozen  that  they  afterwards  had  to  bq  amputated,  and  that  it  was 
the  duty  of  the  defendant,  under  the  circumstances  set  forth,  to 
pro\'ide  him  with  food  and  shelter  and  transportation  as  aforesaid. 
To  this  declaration  the  defendant  demurs  on  the  grounds  (1)  that 
the  defendant  owed  no  legal  duty  to  the  plaintiff  in  the  premises; 
(2)  that  the  alleged  negligence  was  not  the  proximate  cause  of  the 
accident;  (3)  that  the  danger  complained  of  was  obvious  to  the  plain- 
tiff, and  that  he  assumed  it  as  one  of  the  risks  of  his  employment; 
(4)  that  the  plaintiff  was  not  in  the  exercise  of  due  care;  and  (5)  that 
it  does  not  appear  from  the  declaration  that  the  defendant  was  guilty 
of  negligence.^  .  .  . 

We  think  the  second  count  is  also  demurrable.     It  is  not  alleged 
that  the  defendant  corporation  conveyed  the  plaintiff  to  his  place  of 

^  So  much  of  the  opinion  as  discusses  the  first  count  is  omitted.  —  Ed. 


64      KING    V.    INTERSTATE    CONSOLIDATED    STREET    RY.    CO.      [CHAP.    II. 

work,  or  that  it  promised,  either  expressly  or  impHedly,  to  carry  him 
back  to  his  home;  and  it  is  not,  and  could  not  successfully  be,  con- 
tended that  it  is  any  part  of  the  duty  of  an  employer  to  carry  his  em- 
ployes to  or  from  their  place  of  work,  in  the  absence,  at  any  rate,  of 
some  custom,  understanding,  or  agreement  to  that  effect.  In  lonnone 
V.  Railroad  Co.,  21  R.  I.  452,  44  Atl.  592,  46  L.  R.  X.  730,  79  Am.  St. 
Rep.  812,  Matteson,  C.  J.,  in  delivering  the  opinion  of  the  court,  said: 
"The  carrying  of  the  deceased  after  his  day's  work  was  done  to  a 
point  near  liis  home  is,  we  think,  to  be  regarded  not  as  creating  the 
relation  of  a  passenger,  but,  rather,  as  a  prixilege  incidental  to  his 
contract  of  service,  granted  him  by  the  defendant,  of  which  he  availed 
himself  to  facilitate  his  return  to  his  home,  and  that  it  was  a  privalege 
accorded  to  him  merely  by  reason  of  his  contract  of  service."  Schu- 
maker  v.  Railroad  Co.,  46  Minn.  39,  48  N.  W.  559,  12  L.  R.  A.  257, 
cited  by  plaintiff's  counsel  in  support  of  this  count,  while  at  first  blush 
it  would  seem  to  sustain  the  same,  yet,  upon  more  careful  study,  we 
think  it  is  distinguishable  from  the  case  at  bar.  There  the  plaintiff  was 
sent  to  repair  a  wrecked  caboose  on  the  line  of  the  defendant's  road. 
It  was  extremely  cold,  and  a  \'illage  nine  miles  away  was  the  near- 
est point  at  which  he  could  get  food  and  shelter.  He  was  not  provided 
with  food  or  sufficient  clothing  for  exposure  to  such  weather.  The 
company  knew  this,  and  knew  that  he  relied  upon  its  sending  for 
him  in  the  evening.  It  did  not  do  so,  and  he  was  obliged  to  walk  back 
to  the  village,  and  by  reason  of  his  exposure  to  the  extreme  cold  he 
contracted  rheumatism  and  was  permanently  injured.  The  court  held 
that  he  was  entitled  to  recover.  The  case  was  different  from  the 
one  now  before  us,  in  this :  That  it  was  e\'idently  alleged  in  the  declara- 
tion (although  the  declaration  is  not  set  out  in  the  case)  that  the 
defendant  knew  of  the  plaintiff's  unprepared  condition  as  to  clothing, 
etc.,  and  also  knew  that  he  relied  on  the  defendant's  furnishing  him 
with  transportation  when  the  work  was  completed.  Whether,  in  case 
the  declaration  now  before  us  showed  such  a  state  of  facts,  we  should 
follow  that  case  and  sustain  it,  we  are  not  now  called  upon  to  decide. 
That  the  defendant's  conduct  toward  the  plaintiff  in  refusing  to  carry 
him  home  after  his  feet  were  frozen  was  highly  reprehensible,  morally 
speaking,  no  one  will  question.  Indeed,  it  is  well-nigh  inconceivable 
that  the  agents  and  servants  of  the  defendant  corporation  could 
have  been  guilty  of  so  gross  an  act  of  inhumanity.  But  courts  of  law 
can  only  take  notice  of  legal  rights,  duties,  and  obligations,  and  must 
decide  cases  in  accordance  therewith,  regardless  of  humanitarian 
questions.    The  demurrer  to  the  second  count  is  sustained. 

As  the  declaration  in  the  second-named  case,  namely,  John  Morri- 
son V.  Interstate  Consolidated  St.  Ry.  Co.,  is  the  same  as  the  one 
we  have  already  considered,  the  demurrer  thereto  is  also  sustained, 
and  the  cases  are  remanded  to  the  common  pleas  division  for  further 
proceedings. 


SECT.  III.]  FORD   V.   TRIDENT   FISHERIES  COMPANY. 


65 


SECTION  III. 

Causation  of  Injury. 

FORD  V.  TRIDENT  FISHERIES  C0MPAN1\ 
Supreme  Judicial  Court  of  Massachusetts,  1919. 

[Reported  232  Mass.  400.] 

Carroll,  J.  The  plaintiff's  intestate  was  drowned  while  employed 
as  mate  of  the  defendant's  steam  trawler,  the  Long  Island.  This 
action  is  to  recover  damages  for  his  death. 

On  December  21,  1916,  about  five  o'clock  in  the  afternoon,  the 
vessel  left  T  Wharf,  Boston,  bound  for  the  "Georges,"  which  are  fish- 
ing banks  in  Massachusetts  waters.  About  six  o'clock,  shortly  after 
passing  Boston  Light,  the  plaintiff's  intestate,  Jerome  Ford,  came  on 
deck  to  take  charge  of  his  watch  as  mate  of  the  vessel.  He  came  from 
the  galley  in  the  forecastle  and  walked  aft  on  the  starboard  side.  As 
he  was  ascending  a  flight  of  four  steps  leading  from  the  deck  to  the  pilot 
house,  the  vessel  rolled  and  he  was  thrown  overboard.  At  the  time 
of  the  accident  there  was  a  fresh  northwest  breeze  and  the  vessel  was 
going  before  the  wind;  no  cry  was  heard,  no  clothing  was  seen  floating 
in  the  water,  and  Ford  was  not  seen  by  any  one  from  the  time  he  fell 
overboard.  ... 

The  plaintiff  also  contends  that  the  boat  which  was  lowered  to 
pick  up  the  intestate  was  lashed  to  the  deck  instead  of  being  suspended 
from  davits  and  in  order  to  launch  it  the  lashings  had  to  be  cut;  that 
McCue,  who  manned  it,  had  only  one  oar  and  was  obliged  to  scull, 
instead  of  rowing  as  he  might  have  done  if  he  had  had  two  oars.  Even 
if  it  be  assumed  that  upon  these  facts  it  could  have  been  found  the 
defendant  was  negligent,  there  is  nothing  to  show  they  in  any  way 
contributed  to  Ford's  death.  He  disappeared  when  he  fell  from  the 
trawler  and  it  does  not  appear  that  if  the  boat  had  been  suspended 
from  davits  and  a  different  method  of  propelling  it  had  been  used  he 
could  have  been  rescued. 


06  SOWLES  V.   -MOORE,  [cHAP.  II. 

SOWLES  V.  MOORE. 
Supreme  Court  of  Vermont,  1893. 

[Reported  65   Vt.  322.] 

Tyler,  J.  This  was  an  action  of  trespass  on  the  case  brought 
to  recover  the  value  of  a  pair  of  horses,  which  were  drowned  in  Lake 
Charnplain,  through  the  alleged  negligence  of  the  defendants  in  not 
properly  guarding  an  opening  in  the  lake  where  they  had  been  takini; 
ice  near  a  line  of  public  travel. 

The  plaintiff's  evidence  tended  to  show  that  his  son  had  occasion 
to  drive  onto  the  lake  on  the  day  of  the  accident;  that  the  wind  was 
blowing  and  the  ice  was  glare;  that  in  turning  the  team  around  the 
sled  slewed  and  brought  the  pole  against  the  horses'  legs,  frightening 
them;  that  they  escaped  from  the  driver  and  ran  rapidly  from  forty 
to  sixty  rods  and  into  the  op(;ning,  which  was  twenty  to  thirty  feet 
long  by  forty  to  sixty  feet  wide,  and  but  little  guarded. 

The  .statute,  R.  L.  s.  4,  321,  does  not  prescribe  the  manner  in  which 
such  openings  shall  be  guarded.  It  imposes  a  fine  upon  persons  who, 
in  localities  where  people  are  accustomed  to  travel,  make  openings 
and  do  not  place  suitable  guards  around  them. 

The  jury  found  by  special  verdicts  that  the  opening  was  not  properly 
guarded,  and  that  the  plaintiff's  servant  was  in  the  exercise  of  due 
care  in  respect  to  the  team  and  the  management  of  it. 

The  errors  assigned  were  in  the  court's  submitting  to  the  jury  to 
find  whether  the  horses  would  not  have  run  into  the  opening  if  it  had 
been  properly  guarded,  whether  the  guards  would  have  stopped  them, 
considering  their  fright  and  the  speed  with  wliich  they  were  running, 
and  in  the  instructions  that  the  plaintiff  must  make  out  that  the 
horses  were  drowned  by  reason  of  the  failure  of  the  defendants  to  prop- 
erly guard  the  opening;  that  if  the  guards  would  not  have  prevented  the 
casualty  the  plaintiff  coukLnot  recover,  although  he  was  in  the  exer- 
cise of  due  care  and  the  defendants  were  negligent;  that  if  the  jury 
were  satisfied  by  a  fair  balance  of  e\'idence  that  the  horses  would  have 
been  turned  away  by  a  suitable  guard,  then  the  defendants'  negligence 
caused   the   damage. 

These  instructions  did  not  contain  a  new  proposition  of  law.  It 
is  a  general  rule  that  negligence  must  not  only  be  alleged  and  proved, 
but  it  must  also  be  shown  that  it  caused  the  injury  complained  of. 
When  injury  on  the  part  of  the  plaintiff  and  negligence  on  the  part 
of  the  defendant  concur,  the  plaintiff  cannot,  nevertheless,  recover,  if 
the  defendant  could  not,  by  the  exercise  of  due  care,  have  prevented 
the  accident  from  occurring.  Red.  &  Shear,  on  Neg.  s.  8.  In  cases 
that  arose  under  our  former  statute  rendering  towns  liable  for  injuries 
caused  by  defective  highways,  it  was  not  sufficient  to  prove  the  exis- 
tence of  defects.  It  must  also  have  been  shown  that  the  defects  caused 
the  injuries  alleged.    Lester  v.  Pittsford,  7  Vt.  158. 


( 


SECT.  III.]  SOWLES   V.   MOORE.  67 

Were  the  horses  in  such  fright  and  running  at  such  speed  that  they 
would  have  been  turned  from  their  course  by  such  guards  as  reasonably 
prudent  men  would  have  erected?  This  was  a  material  question  of 
fact  for  the  jury  to  decide  before  they  could  say  whether  or  not  the 
defendants'  negligence  in  respect  to  a  guard  was  the  cause  of  the  cas- 
ualty. Both  questions  were  involved  in  the  instruction  that  the 
plaintiff  must  make  out  "that  the  horses  were  drowned  by  reason  of 
the  failure  of  the  defendants  to  properly  guard  the  hole." 

Suppose  damages  were  claimed  of  a  town,  caused  by  an  alleged 
defective  railing  upon  a  bridge;  could  the  ciuestion  be  excluded  from 
the  consideration  of  a  jury,  upon  proper  exddence,  whether  from  the 
nature  of  the  accident  a  suitable  railing  could  have  prevented  it? 
We  think  not. 

In  Titcomb  v.  Fitchburg  R.  R.  Co.,  12  Allen  254,  the  negligence 
alleged  was  the  want  of  railings  to  the  approaches  to  a  highway  bridge 
which  the  defendant  was  bound  to  maintain  over  its  railroad  at  a  cross- 
ing. Among  other  things  the  court  instructed  the  jury  that  if  they 
were  satisfied  that  the  injury  to  tJie  plaintiff  would  not  have  occurred 
if  the  fence  or  railing  had  been  sufficient,  they  must  find  a  verdict  for 
her.  In  considering  this  subject  the  Supreme  Court  said:  "So  far  as 
such  a  fence  would  be  effectual  to  guard  against  injury  frqm  the  fright- 
ening of  a  horse  about  to  enter  upon  the  bridge,  by  the  approach  of 
a  train  of  cars  passing  under  the  bridge,  the  plaintiff  was  entitled  to 
that  protection.  Not  that  the  defendant  was  bound  to  maintain  a  bar- 
rier that  would  in  all  cases  stop  the  progress  of  a  frightened  horse 
about  to  enter  upon  the  bridge,  but  it  was  bound  to  maintain  and  keep 
in  repair  a  suitable  and  proper  fence  at  the  place ;  and  if  the  discharge 
of  this  duty  would  have  prevented  the  occurrence  of  the  present  injury, 
and  the  plaintiff  is  shown  to  have  been  without  fault  on  her  part, 
the  railroad  company  may  properly  be  charged  in  the  present  action. 
The  fact  whether  such  a  fence  would  have  prevented  the  occurrence 
of  the  injury  may  be  a  difficult  one  for  the  jury  to  find,  but  the  burden 
is  on  the  plaintiff  to  show  this,  and  if  she  can  establish  it  the  defendant 
may  be  held  liable  for  the  injuries  sustained.  The  case  of  a  horse 
being  frightened  is  one  of  the  cases  of  casualty  which  may  and  often 
does  occur,  and  is  entirely  consistent  with  a  reasonable  degree  of 
care  and  prudence  on  the  part  of  the  traveler.  Such  traveler  has  a  right 
in  case  of  such  occurrence  to  the  protection  which  such  a  fence  as  the 
law  requires  the  railroad  company  to  maintain  would  have  given. 
If  such  a  fence  would  have  been  unavailing,  and  the  injury  would  still 
have  occurred,  the  traveler  cannot  say  his  injury  was  occasioned  by 
any  neglect  of  the  railroad  company,  and  he  must  bear  the  loss;  but 
if  otherwise,  the  liability  attaches  to  the  party  bound  to  maintain  the 
fence  as  an  appenflage  to  the  bridge." 

In  Wilson  v.  Atlanta,  60  Ga.  473,  it  was  alleged  that  an  injury  was 
caused  by  the  defendant's  negligence  in  riot  providing  a  railing  upon 
a  street.    An  instruction  was  held  proper,  that  the  questions,  whether 


68  STATE  V.   SCATES.  [CHAP.  II. 

or  not  there  was  negligence  in  not  putting  up  the  raiUng,  and  whether 
such  neghgence  caused  the  injury  to  the  plaintiff,  might  be  tested  by 
the  inquiry  whether  the  plaintiff  would  not  have  been  injured  even  if 
the  railing  had  been  constructed. 

In  Ilfrey  v.  Sabine,  etc.,  R.  R.  Co.,  76  Tex.  63,  the  plaintiff  sought 
to  charge  the  defendant  with  liability  by  reason  of  its  maintaining 
an  embankment,  which,  as  alleged,  caused  the  destruction  of  the  plain- 
tiff's house  by  water.  It  was  held  competent  for  the  trial  court  to 
consider  evidence  tending  to  show  that  the  house  would  have  been 
swept  away  by  the  storm,  regardless  of  the  embankment,  to  find  that 
fact  from  a  preponderance  of  the  e\'idence,  and  that  the  embankment 
was  not  the  proximate  cause  of  the  destruction. 

In  Bellefohtaine,  etc.,  R.  R.  Co.  v.  Bailey,  11  Ohio  St.  333,  it  was 
alleged  that  the  defendant  negligently  ran  its  train  so  as  to  kill  the 
plaintiff's  horses.  It  was  held  error  for  the  court  to  refuse  an  in- 
struction to  the  jury,  that  though  the  defendant  was  negligent,  the 
plaintiff  must  fail  in  his  action  if  the  jury  believed  from  the  evidence 
that  due  care,  had  it  been  used,  would  not  have  prevented  the  injm-y. 

A  corresponding  proposition  was  contained  in  Judge  Steele's  charge 
in  Walker  and  wife  v.  Westfield,  39  Vt.  246,  which  was  construed  by 
this  court  to  mean  that  though  the  plaintiffs  were  not  in  the  exercise 
of  due  care,  if  "such  want  of  care  did  not  contribute  to  the  accident, 
then  it  is  of  no  consequence  in  the  case,  and  wall  not  prevent  a  recovery." 

We  find  the  instructions  fully  sustained  both  by  reason  and  author- 
ity. 

The  request  to  charge  in  respect  to  "  the  known  instincts  of  the  horse" 
did  not  embody  any  legal  proposition.  All  that  the  court  could  prop- 
erly say  on  this  subject  was  said  in  reply  to  an  inquiry"  by  the  jury. 

Judgment  affirmed.^ 

STATE    r.    SCATES. 

Supreme  Counx  of  North  Carolina.     1858. 

[Reported  5  Jones  420.] 

Dr.  Hill  saw  the  deceased  [child]  about  twenty  hours  after  it  was 
burnt.  He  dissected  the  burnt  parts,  and  found  the  injuries  very  exten- 
sive, the  arms,  back,  and  thighs  were  roasted,  —  crisped  like  a  piece  of 
leather.  He  stated  that  there  was  a  wound  in  the  forehead,  as  if  from  a 
blow  ;  he  was  fully  satisfie(1  the  l)urning  in  itself  was  fatal,  and  must 
have  produced  death,  but  he  '•  doubted  as  to  the  immediate  cause  of  death 
—  thought  it  was  produced  by  the  blow."  He  explained  on  cross- 
examination  that  he  thought  the  burning  the  primary  cause  of  the  death, 
but  that  it  was  probably  hastened  by  the  wound  on  the  head.^ 

1  Ace.  Brash  v.  St.  Louis,  161  Mo.  43.3;  Laidlaw  v.  Sage,  158  N.  Y.  73;  Helpling 
V.  Cemetery  Co.,  201  Pa.  171. 

2  Part  of  the  case,  turning  on  the  admissibility  of  a  confession,  is  omitted.  —  Ed. 


SECT.  III.]  STATE  V.   SCATES.  69 

The  Court  charged  the  jury  that  ...  as  to  the  cause  of  the  death,  it 
was  for  thera  to  say  whether  it  had  been  produced  by  the  burning,  or 
other  means,  and  that  if  produced  by  the  burning,  they  should  be  satis- 
fied that  the  burning  was  the  act  of  the  prisoner;  "and  even  should 
they  share  in  the  doubt  expressed  by  the  doctor,  that  the  blow  had 
caused  its  immediate  death,  yet  if  satisfied  that  the  burning  was  the 
primar}'  cause  of  the  death,  and  the  blow  only  hastened  it,  it  would  be 
their  duty  to  convict."  —  Defendant  again  excepted. 

Verdict  "  guilty."     Judgment  and  appeal  by  the  defendant. 

Battle,  J.  .  .  .  Upon  the  other  point  in  the  case,  we  are  decidedly  of 
opinion  that  the  prisoner  is  entitled  to  a  new  trial.  As  to  the  cause  of  the 
death  of  the  deceased,  his  Honor  charged  the  jury  that  if  the}'  "  should 
share  in  the  doubt  expressed  by  the  doctor,  that  the  blow  had  caused 
the  immediate  death,  yet,  if  satisfied  that  the  burning  was  the  primary 
cause  of  the  death,  and  the  blow  only  hastened  it,  it  would  be  their 
duty  to  convict."  This  instruction  was  given  upon  the  supi)osition 
that  the  blow  was  inflicted  by  another  person,  and  the  proposition 
could  be  true  only  when  the  testimon}-  connected  the  acts  of  such  per- 
son with  the  prisoner,  so  as  to  make  them  both  guilt\',  and  we  at  first 
thought  such  was  the  proper  construction  to  be  put  upon  the  language 
used  bj-  his  Honor ;  but,  upon  reflection,  we  are  satisfied  that  a  broader 
proposition  was  laid  down,  to  wit:  that  if  the  prisoner  inflicted  a  mortal 
wound,  of  which  the  deceased  must  surely  die,  and  then  another  person, 
having  no  connection  with  him,  struck  the  child  a  blow,  which  merely 
hastened  its  death,  the  prisoner  would  still  be  guilt}-.  The  testimony 
presented  a  view  of  the  case  to  which  this  proposition  was  applicable, 
and  it  becomes  our  duty  to  decide  whether  it  can  be  sustained  upon 
any  recognized  principles  of  law. 

Murder  is  the  killing,  with  malice  prepense,  a  reasonable  being 
within  the  peace  of  the  State,  The  act  of  killing,  and  the  guilty  intent, 
must  concur  to  constitute  the  oflfence.  An  attempt,  only,  to  kill  with 
the  most  diabolical  intent,  may  be  moral,  but  cannot  be  legal,  murder. 
If  one  man  inflicts  a  mortal  wound,  of  which  the  victim  is  languishing, 
and  then  a  second  kills  the  deceased  by  an  independent  act,  we  cannot 
imagine  how  the  first  can  be  said  to  have  killed  him,  without  involving 
the  absurdity  of  saying  that  the  deceased  was  killed  twice.  In  such  a 
case,  the  two  persons  could  not  be  indicted  as  joint  murderers,  because 
there  was  no  understanding  or  connection  between  them.  It  is  certain 
that  the  second  person  could  be  convicted  of  murder,  if  he  killed  with 
malice  aforethought ;  and  to  convict  the  first  would  be  assuming  that  he 
had  also  killed  the  same  person  at  another  time.  Such  a  proposition 
cannot  be  sustained. 

The  prisoner  must  have  a  new  trial.  This  renders  it  unnecessary  for 
us  to  consider  the  effect  of  the  alleged  erroneous  entry  of  the  verdict. 

Per  Curiam.  Judgment  reversed. 


70  COREY   V.   HAVENER.  [CHAP.   II. 

COREY  V.   HAVENER. 
Supreme  Judicial  Court  of  Massachusetts,  1902. 

[Reported  182  Mass.  250.] 

Two  actions  of  tort  by  the  same  plaintiff  against  different  defendants 
for  injuries  to  the  plaintiff  and  to  his  wagon  caused  by  the  alleged  negli- 
gence of  both  defendants,  each  operating  a  separate  gasoline  motor 
tricycle  at  an  illegal  and  dangerous  rate  of  speed  and  frightening  the 
plaintiff's  horse.    Writs  dated  December  22,  1900. 

In  the  Superior  Court  the  two  cases  were  tried  together  before  Pierce, 
J.  It  appeared  that  the  plaintiff,  who  was  very  deaf  and  could  only 
hear  by  the  use  of  an  ear  trumpet,  was  driving  slowly  in  a  wagon 
along  Shrewsbury  Street,  a  public  street  and  main  thoroughfare  in 
Worcester;  that  the  defendants  came  up  from  behind  and  passed  the 
plaintiff  at  a  high  rate  of  speed  one  on  each  side;  that  each  defendant 
was  mounted  on  a  motor  tricycle  with  a  gasoline  engine  making  a  loud 
noise  and  emitting  steam,  some  of  the  plaintiffs'  witnesses  saying  that 
the  machines  emitted  steam  and  smoke,  making  a  cloud  about  the 
defendants  as  they  rode. 

The  plaintiff  testified  that  his  horse  took  fright  when  the  defend- 
ants first  passed  but  was  under  control  and  guidance  until  he  over- 
took the  defendants,  and  that  running  between  them  the  horse  shied 
and  he  then  lost  control.  His  wagon  wheel  struck  another  wagon 
going  in  the  same  direction,  and  the  injuries  to  himself  and  his  wagon 
occurred. 

The  plaintiff  and  each  of  his  witnesses  was  asked  on  cross-examination 
if  he  could  tell  which  defendant  or  which  vehicle  caused  the  horse 
to  take  fright,  and  each  witness  was  unable  to  tell. 

The  defendants  requested  the  judge  to  instruct  the  jury,  that  the 
evidence  showing  that  they  were  on  two  separate  vehicles  entirely 
independent  of  each  other,  and  there  being  two  different  suits  for  the 
same  injury,  the  burden  was  on  the  plaintiff  to  show  which  one  of  the 
defendants,  if  either,  was  to  blame;  and  that,  if  it  was  not  clearly  shown 
which  one  of  the  defendants  caused  the  accident,  the  plaintiff  could 
not   recover. 

The  defendants  also  requested  the  judge  to  instruct  the  jury  that 
there  being  two  defendants  and  two  separate  suits,  and  the  cause  of 
action  against  each  being  for  the  same  injury,  if  the  jury  found  for  the 
plaintiff  they  must  assess  the  full  damages  and  determine  against  which 
defendant,  and  that  they  could  not  assess  full  damages  against  both, 
as  that  would  be  giving  double  damages. 

The  judge  refused  to  give  either  of  these  instructions.  The  jury  found 
for  the  plaintiff  in  each  case  and  in  each  case  assessed  the  damages  in 
the  sum  of  $700.    The  defendants  alleged  exceptions. 

Lathrop,  J.     The  only  question  which  arises  in  these  cases  is  whether 


SECT.   III.]  GAY  V.   STATE.  71 

the  judge  erred  in  refusing  to  give  the  instructions  requested.  The  bill 
of  exceptions  does  not  set  forth  what  instructions  were  given,  and  we 
must  assume  that  they  were  appropriate  to  the  case  as  presented  by  the 
evidence,  and  were  correct. 

The  verdict  of  the  jury  has  estabHshed  the  fact  that  both  of  the 
defendants  were  wrongdoers.  It  makes  no  difference  that  there  was 
no  concert  between  them,  or  that  it  is  impossible  to  determine  what 
portion  of  the  injury  was  caused  by  each.  If  each  contributed  to  the 
injury,  that  is  enough  to  bind  both.  Whether  each  contributed  was 
a  question  for  the  jury.  Boston  &  Albany  Railroad  v.  Shanly,  107 
Mass.  568,  578,  and  cases  cited. 

It  makes  no  difference  that  the  defendants  were  sued  severally 
and  not  jointly.  If  two  or  more  wrongdoers  contribute  to  the  injury, 
they  may  be  sued  either  jointly  or  severally.  McAvoy  v.  Wright,  137 
Mass.  207.  The  first  request  for  instructions  was  therefore  rightly 
refused. 

Nor  was  there  any  error  in  refusing  to  give  the  second  request.  If 
both  defendants  contributed  to  the  accident,  the  jury  could  not  single 
out  one  as  the  person  to  blame.  There  being  two  actions,  the  plaintiff 
was  entitled  to  judgment  against  each  for  the  full  amount.  There  is 
no  injustice  in  this,  for  a  satisfaction  of  one  judgment  is  all  that  the 
plaintiff  is  entitled  to.  Elliott  v.  Hayden,  104  Mass.  180;  Savage  v. 
Stevens,  128  Mass.  254;  Luce  v.  Dexter,  135  Mass.  23,  26;  McAvoy 
V.  Wright,  137  Mass.  207;  Galvin  t\  Parker,  154  Mass.  346;  Worcester 
County  V.  Ashworth,  160  Mass.  186,  189. 

Exceptions  overruled} 


GAY   V.    STATE. 

Supreme  Court  of  Tennessee,  1891. 

[Reported  90  Tenn.  645.] 

Lea,  J.  The  plaintiff  in  error  was  indicted  and  convicted  of  a  nui- 
sance in  keeping  and  maintaining  a  hog-pen  in  a  filthy  condition. 
There  were  several  witnesses  who  proved  it  was  a  nuisance.  There 
were  several  who  proved  that  the  pen  was  kept  remarkably  clean,  and 
was  no  nuisance;  and  several  proved  that,  if  there  was  a  nuisance,  it 
was  caused  bj-  a  number  of  hog-pens  in  the  neighborhood. 

His  Honor,  among  other  things,  charged  the  jury  :  "  If  the  jury  find 
that  the  smell  created  b^^  the  defendant's  pen  was  not  sufficient  within 
itself  to  constitute  a  nuisance,  yet  it  contributed  witli  other  pens  in  the 
neighborhood  to  forming  a  nuisance,  the  defendant  woukl  be  guilty." 

This  was  error.  The  defendant  can  only  be  held  liable  for  the  con- 
sequences which  his  act  produced.  The  nuisance  complained  of  must 
be  the  natural  and  direct  cause  of  his  own  act. 

»  See  also  Brown  r.  Thayer,  212  Mass.  237,  99  N.  E.  237;  Matliews  v.  Tramways 
Co.,  60  L.  T.  Rep.  47,  Smith  Cas.  Torts  82.  —  Ed. 


\  ' 


72  CASTELL,   WIDOW,   V.    BAMBRIDGE  AND   CORBET.    [CHAP.  II. 


CASTELL,  WIDOW,  v.  BAMBRIDGE  AND  CORBET. 

Guildhall.     1730. 

[Reported  2  Stranr/e,  854.] 

The  defendant  Bambridge,  having  been  prosecuted  on  the  report  of 
the  committee  of  the  House  of  Commons  for  the  murder  of  tiie  plain- 
tiflTs  husband,  who  was  a  prisoner  in  the  Fleet  under  the  custod}'  of 
Bambridge  the  warden,  and  having  on  the  trial  been  honorably  acquit- 
ted upon  the  prosecutor's  own  evidence,  was  followed  with  an  appeal, 
to  which  Corbet,  who  on  the  cross-examination  appeared  to  be  a  ma- 
terial witness  for  Bambridge,  was  now  also  made  an  appellee.^ 

Upon  this  the  appeal  was  arraigned,  setting  forth  that  the  appellant's 
husband  was  a  prisoner  in  ihe  Fleet  under  the  custody  of  Bambridge 
the  warden,  who  made  an  assault  upon  him,  and  contrary  to  liis  will 
carried  him  to  the  house  of  Corbet,  a  victualling  house  within  the  Fleet, 
and  there  imprisoned  him,  where  one  White  then  lay  ill  of  the  small- 
pox, which  Castell  had  never  had  ;  that  the  appellees  had  notice  of  this, 
and  were  desired  to  sutfer  him  to  remove  to  another  place  in  the  prison, 
which  they  refused,  and  afterwards  Castell  fell  ill  of  that  distemper, 
and  died  in  Corbet's  house,  whereb}-,  the  count  concludes,  the  appellees 
were  guilty  of  his  murder. 

Without  staying  for  a  copy  of  the  declaration  the  appellees  instanter 
pleaded  not  guilty,  and  their  plea  was  rehearsed  in  French,  and  issue 
joined. 

Upon  the  26th  of  Januar}'  the  trial  came  on  at  Guildhall  before  the 
Chief  Justice  [Raymond].  After  a  long  examination  the  Chief  Justice 
directed  the  juiy  that  if  they  believed  Castell  was  carried  to  Corbet's 
against  his  consent,  and  was  there  so  detained,  that  Bambridge  and 
Corbet  knew  the  small-pox  was  there,  that  Castell  had  not  had  it,  but 
feared  it,  and  desired  to  be  removed,  or  not  be  carried  there  at  all, 
that  he  caught  the  small-pox  of  White,  and  died  thereof,  —  then  the 
appellees  would  be  guilty  of  murder  ;  but  if  any  one  of  these  facts  were 
not  proved  to  the  satisfaction  of  the  jur\',  they  ought  to  be  acquitted. 
And  there  being  no  pretence  to  charge  either  of  the  appellees,  the  jury 
brought  them  in  not  guilty.* 

1  Part  of  the  case,  involving  questions  of  procedure  only,  is  omitted. 

2  See  Rex  u.  Huggius,  2  Ld.  Hajra.  1574,  2  Strange,  862.  In  this  case  Lord  Chief 
Justice  Kavmond  said  :  "  There  is  no  particular  way  of  killing  another  that  is  neces- 
sary to  coTistitute  a  murder  ;  but  the  committing  of  murder  is  as  various  as  the  several 
ways  of  putting  an  end  to  life.  In  the  case  of  a  prisoner  there  is  no  occasion  for  an 
actual  stroke  :  the  restraining  him  by  force,  and  killing  him  by  ill-usage,  is  enough  to 
constitute  this  offence.  All  the  authors  who  speak  of  this  species  of  murder  describe 
it  by  a  general  expression  j>er  dure  ifardc  de  ses  yardens."  — Ed. 


SECT.  III.]  REGINA    V.   TOWERS.  73 

REGINA   V.    GREENWOOD. 
Liverpool  Assizes.     1857. 

[Reported  7  Cox  C.  C.  404.] 

The  prisoner  was  indicted  for  murder  and  rape  on  a  child  under  ten. 

It  appeared  from  the  evidence  that  the  prisoner  had  connection  with 
the  deceased,  and  that  it  was  afterwards  discovered  she  had  the  venereal 
disease. 

Fernley  and  C  H.  Hopicood,  for  the  prosecution. 

Cohbett,  for  the  prisoner. 

WiGHTMAN,  J.,  told  the  jur^'  that  the  malice  which  constitutes  mur- 
der might  be  either  express  or  implied.  There  was  no  pretence  in  this 
case  that  there  was  any  malice  other  than  what  might  be  implied  by 
law.     There  were  five  questions  for  them  to  consider, 

Plrst,  had  the  prisoner  connection  with  her? 

Second!}',  did  she  die  therefrom? 

Thirdly,  had  she  the  venereal  disease? 

Fourthly,  did  she  die  from  its  effects? 

Fifthly,  did  she  get  it  from  the  prisoner? 

If  they  were  of  opinion  that  the  prisoner  had  connection  with  her, 
and  she  died  from  its  effects,  then  that  act  being,  under  the  circum- 
stances of  this  case,  a  felony  in  point  of  law,  this  would,  of  itself,  be 
such  malice  as  would  justify  them  in  finding  him  guilty  of  murder. 

The  jury  retired,  and,  after  some  time,  returned  into  court  saying  that 
they  were  satisfied  that  he  had  connection,  and  that  her  death  resulted 
therefrom,  but  were  not  agreed  as  to  finding  him  guilt}'  of  murder. 

WiGHTMAN,  J.,  told  them  that,  under  these  circumstances,  it  was 
open  to  them  to  find  the  prisoner  guilt}'  of  manslaughter,  and  that  they 
might  ignore  the  doctrine  of  constructive  malice  if  they  thought  fit. 

The  jury  found  a  verdict  of  manslaughter,  and  the  prisoner  was 
ordered  to  be  kept  in  penal  servitude  for  life. 


REGINA   V.  TOWERS. 

Carlisle  Assizes.     1874. 

[Reported  12  Cox  C.  C.  530.] 

Wilson  Towers  was  charged  with  the  manslaughter  of  John  Heth- 
erington  at  Castlesowerby  on  the  6th  of  September,  1873. 

The  prisoner,  who  had  been  drinking  on  the  4th  of  August,  went 
into  a  public-house  at  New  Yeat  near  Castlesowerby,  kept  by  the 
■piother  of  the  deceased,  and  there  saw  a  girl  called  Fanny  Glaister 
nursing  the  deceased  child,  who  was    then  only  about  four    months 


7-i  REGINA   V.   TOWERS.  [CHAP.  II. 

and  a  half  old,  having  been  born  on  the  20th  of  March,  1873.  The 
prisoner,  who  appeared  to  have  had  some  grievance  against  Fanny 
(ilaister  about  her  hitting  one  of  his  children,  immediately  on  entering 
the  public-house  went  straight  up  to  where  she  was,  took  her  by  the 
hair  of  the  head,  and  hit  her.  She  screamed  loudly,  and  this  so 
frightened  the  infant  that  it  became  l)lack  in  the  face  ;  and  ever  since 
tli;it  day  up  to  its  death  it  had  convulsions  and  was  ailing  generally 
fi'oin  a  shock  to  the  nervous  system.  The  child  was  previously  a  very 
healthy  one.^ 

Henry  submitted  that  there  was  no  case  to  go  to  the  jury,  but 
Denman,  J.,  said,  that  he  should  leave  it  to  the  jury  to  say  whether 
the  death  of  the  child  was  caused  b}-  the  unlawful  act  of  the  prisoner, 
or  whether  it  was  not  so  indirect  as  to  be  in  the  nature  of  accident. 
This  case  was  different  from  other  cases  of  manslaughter,  for  here 
the  child  was  not  a  rational  agent,  and  it  was  so  connected  with  the 
girl  that  an  injur}-  to  the  girl  became  almost  in  itself  an  injur}-  to 
the  child. 

Uenman,  J.,  in  summing  up,  said  it  was  a  very  unusual  case,  and 
it  was  very  unusual  indeed  to  find  a  case  in  which  thej  got  practically 
no  assistance  from  previouslv  decided  cases.  There  was  no  offence 
known  to  our  law  so  various  in  its  circumstances  and  so  various  in 
tlie  considerations  applicable  to  it  as  that  of  manslaughter.  It  might 
be  that  in  this  case,  unusual  as  it  was,  on  the  principle  of  common  law 
manslaughter  had  been  committed  by  the  prisoner.  The  prisoner  com- 
mitted an  assault  on  the  girl,  which  is  an  unlawful  act,  and  if  that  act, 
in  their  judgment,  caused  the  death  of  the  child,  i.  e.,  that  the  child 
would  not  have  died  but  for  that  assault,,  they  might  find  the  prisoner 
guilty  of  manslaughter.  He  called  their  attention  to  some  considera- 
tions that  bore  some  analog}'  to  this  case.  This  was  one  of  the  new 
cases  to  which  they  had  to  apply  old  principles  of  law.  It  was  a  great 
advantage  that  it  was  to  be  settled  by  a  jury  and  not  by  a  judge.  If 
he  were  to  say,  as  a  conclusion  of  law,  that  murder  could  not  have 
been  caused  by  such  an  act  as  this,  he  might  have  been  laying  down  a 
dangerous  precedent  for  the  future  ;  for  to  commit  a  murder  a  man 
might  do  the  very  same  thing  this  man  had  done.  They  could  not 
commit  murder  upon  a  grown-up  person  by  using  language  so  strong 
or  so  violent  as  to  cause  that  person  to  die.  Therefore  mere  intimida- 
tion, causing  a  person  to  die  from  fright  by  working  upon  his  fancy, 
was  not  murder.  But  there  were  cases  in  which  intimidations  had 
been  held  to  be  murder.  If  for  instance  four  or  five  persons  were  to 
stand  round  a  man  and  so  threaten  him  and  frighten  him  as  to  make 
him  believe  that  his  life  was  in  danger,  and  he  were  to  back  away  from 
them  and  tumble  over  a  precipice  to  avoid  them,  then  murder  would 
have  been  committed.  Then  did  or  did  not  this  principle  of  law  apply 
to  the  case  of  a  child  of  such  tender  years  as  the  child  in  question? 

^  The  evideucc  is  umitted. 


SECT.  III.]  REGINA  V.   TOWERS.  75 

For  the  purposes  of  the  case  he  would  assume  that  it  did  not;  for  the 
purposes  of  to-da}'  he  sliould  assume  that  the  hiw  about  working  upon 
people  b}-  fright  did  not  apply  to  the  case  of  a  child  of  such  tender 
years  as  this.  Then  arose  the  question,  which  would  be  for  them  to 
decide,  whether  this  death  was  directly  the  result  of  the  prisoner's  un- 
lawful act,  whether  the}'  thought  that  the  prisoner  might  be  held  to  be 
the  actual  cause  of  the  child's  death,  or  whether  they  were  left  in  doubt 
upon  that  upon  all  the  circumstances  of  the  case.  After  referring  to 
the  supposition  that  the  convulsions  were  brought  on  owing  to  the  child 
teething  he  said  that  even  though  the  teething  might  have  had  some- 
thing to  do  with  it,  yet  if  the  man's  act  brought  on  the  convulsions,  or 
brought  them  to  a  more  dangerous  extent,  so  that  death  would  not 
have  resulted  otherwise,  then  it  would  be  manslaughter.  If,  therefore, 
the  jury  thought  that  the  act  of  the  prisoner  in  assaulting  the  girl  was 
entirel}'  unconnected  with  it,  that  the  death  was  not  caused  by  it,  but 
b}'  a  combination  of  circumstances,  it  would  be  accidental  death  and 
not  manslaughter.^  JV^ot  gtiilty. 

1  Compare  Reg.  v.  Murton,  3  F.  &  F.  492.  In  charging  tlie  jury  in  tliat  case 
Byles,  J.,  said  :  — 

Within  a  few  hours  of  her  death  the  woman  said  that  her  husband  had  caused  her 
death,  hut  to  some  of  tiie  witnesses  slie  said  that  he  had  "  broken  her  heart,"  and 
that  being  turned  out  of  her  home  had  caused  her  death.  Taken  all  together  these 
dying  declarations  are,  perhaps,  more  in  favor  of  than  against  the  jirisoner  ;  for  if  the 
woman  died  of  a  broken  heart,  and  from  anguisli  at  l)eing  turned  out  of  lier  home, 
it  would  not  be  a  case  of  manslaughter.  To  constitute  that  crime  there  must  Iiave 
been  some  physical  or  corporeal  injury,  negative  or  positive,  as  a  blow,  or  tlie  depri- 
vation of  necessaries,  or  the  like.  Almost  the  last  thing  she  had  said  was,  "  That 
villain  has  broken  my  heart."  There  was,  however,  violence,  which,  according  to  the 
evidence,  mi(]ht  have  accelerated  lier  deatli.  ...  It  is  clearly  the  law  that  if  the 
death  was  accelerated  by  violence,  so  that  death  happened  sooner  tiian  it  otherwise 
would  have  done,  that  is  homicide.  It  is  not  murder,  unless  death  was  intended,  but 
it  is  manslaugliter  if  the  violence  hastened  the  death.  Mere  unkind  or  unhusbandlike 
u.sage  is  not  enough,  and  there  must  l)e  violence,  physical  or  corporeal.  If  the  being 
treated  so  and  turned  out  of  her  home  had  preyed  upon  her  spirits  and  broken  her 
heart,  it  is  not  a  case  of  manslaughter,  and  human  tribunals  can  take  no  cognizance 
of  it  as  a  criminal  offence.  The  question,  then,  for  you  lies  in  a  very  narrow  compass 
indeed.  The  question  is,  was  the  violence  used  towards  the  deceased  on  the  kitciien 
floor  Oil  that  night  the  cause  of  her  death  in  this  sen.se—  that  it  hastened  her  death? 
That  is,  did  it  cause  her  to  die  sooner  than  she  otherwise  would  have  died?  Did  the 
blows,  or  the  throwing  on  the  floor,  or  both  conjointly,  hasten  her  death,  and  cause 
her  to  die  sooner  than  she  otherwise  would  have  done?  If  so  you  should  find  the 
prisoner  guilty;  if  not,  acquit  him. — Ed. 


76  CENTRAL  OF  GEOROIA   RAILWAY  CO.   V.   PRICE.         [CHAP.  II. 

SECTION  IV. 

Remote  Consequences. 

REX   I'.  GILL. 
King's  Bench.    1719. 

[Reported  1  Strange,  190.] 

An  indictment  for  throwing  skins  down  into  a  man's  yard,  which  was 
a  pubHc  way,  per  quod  another  man's  eye  was  beat  out.  On  the  evi- 
dence it  appeared  the  wind  took  the  skin  and  blew  it  out  of  the  way, 
and  so  the  damage  happened. 

The  Chief  Justice  [Pratt]  remembered  the  case  of  the  hoy^  and 
that  in  Hobart,^  where,  in  exercising,  one  soldier  wounded  another,  and 
a  case  in  the  year-book,  of  a  man  lopping  a  tree,  where  the  bough  was 
blown  at  a  distance  and  killed  a  man.  And  in  the  principal  case  the 
defendants  were  acquitted. 


CENTRAL   OF    GEORGIA   RAILWAY    COMPANY   v.    PRICE. 
Supreme  Court  of  Georgia,  1898. 

[Reported  106  Ga.  176.] 

Simmons,  C.  J.  The  record  discloses  that  Mrs.  Price  was  a  passen- 
ger on  a  train  of  the  defendant  company,  and  that  her  destination  was 
Winchester,  Georgia.  Through  the  negligence  of  the  conductor,  she 
was  not  put  off  at  Winchester,  but  was  carried  on  to  Montezuma. 
LTpon  her  arrival  at  the  latter  place,  the  conductor  ad\nsed  her  to  go 
to  the  hotel  and  spend  the  night,  he  agreeing  to  carry  her  back  to 
Winchester  in  the  morning  when  his  train  made  the  return  trip.  He 
accompanied  her  to  a  hotel  where  a  room  was  assigned  her,  the  con- 
ductor agreeing  with  the  proprietor  to  pay  her  expenses.  She  was  taken 
to  her  room  by  the  proprietor  or  his  servants,  and  furnished  with  a 
kerosene  lamp  which  she  left  burning  after  she  had  retired  to  bed. 
Sometime  during  the  night  the  lamp,  she  claims,  exploded  and  set 
fire  to  a  mosquito  net  which  covered  the  bed,  and  in  her  efforts  to  ex- 
tinguish the  flames  her  hands  were  badly  burned.  .  .  . 

The  injury  was  occasioned  by  the  negligence  of  the  proprietor  of 
the  hotel  or  his  servants  in  gi\nng  her  a  defective  lamp.  The  neg- 
ligence of  the  company  in  passing  her  station  was,  therefore,  not  the 

'  Amies  v.  Stevens,  1  Stra.  128.  ^  Weaver  v.  Ward,  Hob.  134. 


SECT.    IV.]       CENTR.\L   OF  GEORGIA   RAILWAY   CO.    V.   PRICE.  77 

natural  and  proximate  cause  of  her  injury.  There  was  the  interposi- 
tion of  a  separate,  independent  agency,  the  negligence  of  the  proprie- 
tor of  the  hotel,  over  whom,  as  we  have  shown,  the  railway  company 
neither  had  nor  exercised  any  control.  Civil  Code,  §§3912,  3913? 
Perry  v.  Central  Ry.,  66  Ga.  746;  Mayor  etc.  of  Macon  v.  Dykes, 
103  Ga.  847;  South-Side  etc.  Co.  v.  Trich,  117  Pa.  St.  390,  11  Atl. 
627;  Wood  v.  Railway  Co.  117  Pa.  St.  306,  35  Atl.  699;  Lewis  v.  Ry.  Co., 
54  Mich.  55,  19  N.  W.  744;  Hoag  v.  Ry.  Co.,  85  Pa.  St.  293;  Sira  v.  Ry. 
Co.,  115  Mo.  127,  21  S.  W.  905;  Gulf  etc.  Ry.  Co.  v.  Shields,  9  Tex. 
Civ.  App.  652,  29  S.  W.  652;  Smith  v.  Bolles,  132  U.  S.  125.  The  in- 
juries to  the  plaintiff  were  not  the  natural  and  proximate  consequences 
of  carrying  her  beyond  her  station,  but  were  unusual  and  could  not 
have  been  foreseen  or  provided  against  by  the  highest  practicable 
care.  The  plaintiff  was  not  entitled  to  recover  for  such  injuries,  and 
the  court  erred  in  overruling  the  motion  for  new  trial. 

Judgment  reversed. 


78  STATE  V.   o'bRIEN.  "  [cHAP.  HI. 


CHAPTER   III. 
LIABILITY   BASED   OX    PROXIMATE   CAUSATION. 


SECTION   I. 

No  Intervening  Force. 

STATE  V.  OT.RIEN. 
Supreme  Court  of  Iowa.     1890. 

[Reported  81  Iowa,  88.] 

The  defendant  was  indicted  for  the  crime  of  murder,  and  upon  a 
trial  was  found  guilty  of  manslaughter.  He  was  adjudged  to  be  im- 
prisoned for  two  years  at  liard  labor  in  the  penitentiary  at  Anamosa, 
and  to  pay  the  costs,  and  from  that  judgment  he  appeals. 

Robinson,  J.^  It  is  suggested  that  the  verdict  is  not  supported  by 
the  evidence,  and  that  it  is  not  shown  that  the  death  of  Stocum  resulted 
from  injuries  inflicted  by  the  defendfvnt.  The  evidence  shows  that 
decedent  had  not  been  in  good  healtli  for  several  months.  About 
three  weeks  before  the  assault  in  question,  he  consulted  a  physician, 
who  found  his  heart  in  a  diseased  condition,  and  treated  him  for  heart 
difficulty.  He  improved  steadily  under  that  treatment  until  the  assault 
was  made.  If  his  testimony  at  the  preliminary  examination  and  his 
dying  declaration  were  correct,  he  was  choked  and  kicked  and  otherwise 
grossly  maltreated  by  defendant.  It  is  certain  that  he  was  greatly 
excited  by  the  encounter.  Immediately  after  it  occurred  he  applied  at 
a  house  in  the  vicinity  for  shelter,  stating  that  he  was  afraid  to  go  home 
on  account  of  defendant  and  the  Murphy  boys.  A  witness  says  of  his 
appearance  at  tl)at  time:  "•  He  acted  just  scared  to  death.  His  face 
was  as  pale  as  deatii ;  his  lips  were  swollen.  His  hat  was  torn  and 
had  mud  on'  both  sides."  His  health  failed  rapidly  from  that  time.  A 
witness  who  saw  him  the  day  after  the  assault  describes  his  appearance 
and  condition  as  follows  :  "I  discovered  he  was  in  pretty  bad  shape  ;  he 
was  pale,  haggard  ;  ahnost  impossil)le  for  him  to  breathe.  I  thought 
he  would  reel  right  over  on  the  stoop  tiiere.  His  shoulder-blades 
worked  like  a  bellows.  His  voice  was  weak.  His  lips,  dark  blue." 
The  medical  testimony  sliows  that  his  condition  and  failing  health  after 
the  assault,  and  his  death,  were  natural  and  probable  results  of  his 
physical  condition  on  the  night  of  July  15,  and  of  great  excitement 
and  physical  exertion. 

It  was  the  province  of  the  jury  to  determine  whetlier  the  wrong  of 
defendant  caused  or  contributed  to  decedent's  death.  The  fact  that  he 
was  afflicted  with  a  disease  which  might  have  proved  fatal  would  not 

1  Tart  ouly  of  the  opinion  is  given. 


SECT.  I.]       ARilSTRONG   V.   MONTGOMERY  STREET   R.\ILWAY  CO.  79 

justify  the  wrongful  acts  of  defendant,  nor  constitute  a  defence  in  Jaw. 
State  V.  Smith,  73  Iowa,  32.  Nor  would  ignorance  on  the  part  of 
defendant  of  the  diseased  pliysical  condition  of  Stocum  excuse  his  acts. 
State  V.  Castello,  G2  Iowa,  404.  We  think  the  evidence  sufficient  to 
sustain  the  verdict,  and  find  no  error  prejudicial  to  defendant  of  which 
he  can  complain. 

The  judgment  of  the  district  court  is  affirmed. 


ARMSTRONG    v.    MONTGOMERY    STREET    RAILWAY    CO. 
Supreme  Court  of  Alabama,  1899. 
[Reported  123  Ala.  233.] 

This  action  was  brought  by  the  appellant,  L.  J.  Armstrong,  as  ad- 
ministratrix of  the  estate  of  Charles  x\rmstrong,  deceased,  against  the 
appellee,  to  recover  damages  for  personal  injuries  alleged  to  have 
been  inflicted  on  plaintiff's  intestate,  by  reason  of  the  negligence  of  the 
defendant  or  its  employes,  and  which  resulted  in  the  death  of  plaintiff's 
intestate.^ 

McClellan,  C.  J.  As  to  the  intestate's  injuries  and  death,  the 
testimony,  as  given  by  the  physician  who  attended  him,  was  as  follows. 
.  .  .  "He  had  no  wounds  except  those  on  the  head  and  hand,  and  no 
other  positive  e\'idences  of  hurt  on  his  body  as  far  as  I  could  see. 
Those  wounds  did  not  directly  produce  death.  They  produced  septice- 
mia which  caused  his  death-  By  septic  infection  is  meant  poisoning 
of  the  system  from  germs,  or  products  of  germs,  introduced  into  the 
blood  through  wounds,  or  other  sources;  it  is  a  paralysis  of  the  system 
due  to  the  presence  of  germs  or  particles  of  germs  in  the  system."  Upon 
this  e^^dence  it  is  sought  to  justify  the  affirmative  charge  for  the  defend- 
ant, which  was  given  by  the  trial  court;  the  contention  being  that,  if 
believed  by  the  jury,  it  showed  that  the  injury  sustained  by  the  intestate 
was  not  the  proximate  cause  of  his  death,  but  that  his  death  was  the  re- 
sult of  an  independent,  intervening  cause,  to  wit :  the  septicemia,  or  blood 
poisoning  which  set  in  or  began  to  infect  his  system  several  days  after 
the  injuries  were  received.  It  is  difficult  to  conceive  how  this  position 
can  be  even  plausibly  supported.  It  is  clear  on  this  evidence  that  in- 
testate's death  resulted  in  direct  line  and  sequence  of  causation  from 
the  injuries  he  received  in  the  fall  from  the  car.  So  far  from  there 
being  an  independent,  superseding  or  responsible  cause  of  death  other 
than  these  injuries,  there  is  absolutely  no  other  cause  shown  or  hinted 
at  in  this  evidence.  The  fall  produced  the  injuries;  the  injuries  pro- 
duced blood  poisoning,  and  the  blood  poisoning  produced  death. 
There  was  no  break  in  the  chain  of  causation  from  the  alleged  negligent 
act  to  the  death  of  intestate.     The  blood  poisoning  was  not  an  in- 

'  Several  points  were  raised  in  this  appeal,  of  which  one  only  is  considered  here. — 
Ed. 


80  L-iTSTN   GAS   &   ELECTRIC  CO.   V.   MERIDEN   INS.   CO.       [cHAP.  III. 

dependent  cause.  It  was  not  a  superseding  cause.  It  was  itself  a 
result,  or,  perhaps  more  accurately,  a  mere  development  of  the  inju- 
ries. It  is  not  an  important  consideration,  even  if  it  be  a  fact,  that 
blood  poisoning  is  not  a  usual  and  ordinary  result  or  development  of 
wounds  of  the  character  inflicted  upon  the  intestate.  It  is  not  of  con- 
sequence that  the  defendant  or  its  motorman  did  not  have  the  infection 
of  septicemia  in  contemplation  when  the  intestate  was  injured.  They 
did  not,  we  take  it,  have  in  contemplation  even  the  mashing  of  his  hand, 
and  if  they  did  they  would  be  guilty  much  beyond  the  charges  made 
by  this  complaint.  The  logical  rule  in  this  connection,  the  rule  of 
common  sense  and  human  experience  as  well,  (if  indeed  there  can  be  a 
difference  between  a  logical  doctrine  and  one  of  common  sense  and 
experience,  as  some  authorities  appear  to  hold),  is  that  a  person  guilty 
of  negligence  should  be  held  responsible  for  all  the  consequences  which 
a  prudent  and  experienced  man,  fully  acquainted  with  all  the  circum- 
stances which  in  fact  existed,  whether  they  could  have  been  ascer- 
tained by  reasonable  diligence  or  not,  would,  at  the  time  of  the  neg- 
ligent act,  have  thought  reasonably  possible  to  follow,  if  they  had 
occurred  to  his  mind. —  1  Sher.  &  Red.  Negligence,  §  29.  That  there 
was  a  reasonable  possibility  of  blood  poisoning  being  developed  or  pro- 
duced by  the  wounds  which  intestate  received  admits  of  no  controversy. 
That  blood  poisoning  did  result  from  the  wounds  is  to  like  degree  clear 
on  the  evidence;  and  confessedly  blood  poisoning  produced  death. 
Death  was,  therefore,  within  the  range  of  responsibility  for  the  negli- 
gent act  which  inflicted  the  wounds;  and  instead  of  the  affirmative 
charge  for  defendant  being  justified  on  the  theory  that  the  e\'idence 
showed  that  death  did  not  result  from  the  injuries,  the  court  might  well 
have  instructed  the  jury  to  find  that  the  injuries  did  produce  the  death 
if  they  believed  the  evidence.^ 


LYNN  GAS  &  ELECTRIC  CO.  v.  MERIDEN  INSURANCE  CO. 
Supreme  Judicial  Court  of  Massachusetts,  1893. 

[Reported  158  Mass.  570.] 

Knowlton,  J.  The  only  exception  relied  on  by  the  defendants  in 
these  cases  is  that  relating  to  the  claim  for  damage  to  the  machinery 
used  in  generating  electricity  and  to  the  building  from  a  disruption  of 

1  See  also  McGarrahan  t.  New  York,  N.  H.  &  H.  R.  R.,  171  Mass.  211,  50  N.  E., 
610;  Ginna  r.  Second  Ave.  R.  R.,  67  N.  Y.,  596.—  Ed. 


SECT.  I.]        LYXX   GAS    &    ELECTRIC   CO.    V.   MERIDEN   INS.   CO.  81 

the  machinery.  This  machinery  was  in  a  part  of  the  building  remote 
from  the  fire,  and  none  of  it  was  burned.  In  his  charge  to  the  jury 
the  judge  stated  the  theory  of  the  plaintiff  as  follows:  "The  plaintiff 
says  the  position  of  the  lightning  arresters  in  the  vicinity  of  the  fire 
was  such  that  by  reason  of  the  fire  in  the  tower  a  connection  was  made 
between  them  called  a  short  circuit;  that  the  short  circuit  resulted 
in  keeping  back  or  in  bringing  into  the  dynamo  below  an  increase  of 
electric  current  that  made  it  more  difficult  for  this  armature  to  revolve 
than  before,  and  caused  a  higher  power  to  be  exerted  upon  it,  or  at 
least  caused  greater  resistance  to  the  machinery;  that  this  resistance 
was  transmitted  to  the  pulley  by  which  this  armature  was  run,  through 
the  belt;  that  that  shock  destroyed  that  pulley;  that  by  the  destruc- 
tion of  that  pulley  the  main  shaft  was  disturbed  and  the  succeeding 
pulleys  up  to  the  jack-pulley  were  ruptured;  that  by  reason  of  pieces 
flying  from  the  jack-pulley,  or  from  some  other  cause,  the  fly-wheel  of 
the  engine  was  destroyed,  the  governor  broken,  and  everything  crushed; 
—  in  a  word,  that  the  short  circuit  in  the  tower  by  reason  of  the  fire 
caused  an  extra  strain  upon  the  belt  through  the  action  of  electricity, 
and  that  caused  the  damage."  The  plaintiff  contended  that  the  short 
circuit  was  produced  by  the  fire,  either  by  means  of  heat  on  the  horns 
of  the  lightning  arresters,  or  by  a  flame  acting  as  a  conductor  between 
the  two  horns,  or  in  some  other  way.  The  jury  found  that  the  plain- 
tiff's theory  of  the  cause  of  the  damage  was  correct,  and  the  question 
is  whether  the  judge  was  right  in  ruling  that  an  injury  to  the  machinery 
caused  in  this  way  was  a  "loss  or  damage  by  fire,"  within  the  meaning 
of  the  policy. 

The  subject  matter  of  the  insurance  was  the  building,  machinery, 
dynamos,  and  other  electrical  fixtures,  besides  tools,  furniture,  and 
supplies  used  in  the  business  of  furnishing  electricity  for  electric  lighting. 
The  defendants,  when  they  made  their  contracts,  understood  that  the 
building  contained  a  large  quantity  of  electrical  machinery,  and  that 
electricity  would  be  transmitted  from  the  dynamos,  and  would  be  a 
powerful  force  in  and  about  the  building.  They  must  be  presumed  to 
have  contemplated  such  effects  as  fire  might  naturally  produce  in 
connection  with  machinery  used  in  generating  and  transmitting  strong 
currents  of  electricity. 

The  subject  involves  a  consideration  of  the  causes  to  which  an  effect 
should  be  ascribed  when  several  conditions,  agencies,  or  authors 
contribute  to  produce  an  effect.  The  defendants  contend  that  the 
application  of  the  principle  which  is  expressed  by  the  maxim,  In 
jure  non  remota  causa  scd  proxima  spectatur,  relieves  them  from  liability 
in  these  cases.  It  has  often  been  necessary  to  determine,  in  trials  in 
court,  what  is  to  be  deemed  the  responsible  cause  which  furnishes 
a  foundation  for  a  claim  when  several  agencies  and  conditions  have  a 
share  in  causing  damage,  and  the  best  rule  that  can  be  formulated  is 
often  difficult  of  application.     When  it  is  said  that  the  cause  to  be 


82  LYlSiN   GAS   &   ELECTRIC   CO.   V.   MERIDEN   INS.    CO.       [cHAP.  IH. 

sought  is  the  direct  and  proximate  cause,  it  is  not  meant  that  the 
cause  or  agency  which  is  nearest  in  time  or  place  to  the  result  is  nec- 
essarily to  he  chosen.  Freeman  v.  Mercantile  Accident  Association, 
156  Mass.  351.  The  active  efficient  cause  that  sets  in  motion  a  train 
of  events  which  brings  about  a  result  without  the  intervention  of  any 
force  started  and  working  actively  from  a  new  and  independent  source 
is  the  direct  and  proximate  cause  referred  to  in  the  cases.  McDonald 
V.  SneUing,  14  Allen,  290;  Perley  v.  Eastern  Railroad,  98  Mass.  414, 
419;  Gibney  v.  State,  137  N.  Y.  529.  In  Milwaukee  &  St.  Paul 
Railway  v.  Kellogg,  94-  U.  S.  469,  474,  Mr.  Justice  Strong,  who  also 
wrote  the  opinions  in  Insurance  Co.  v.  Transportation  Co.,  12  Wall. 
194,  and  in  Western  Massachusetts  Ins.  Co.  v.  Transportation  Co.,  12 
Wall.  201,  which  are  much  relied  on  by  the  defendants,  used  the  fol- 
lowing language  in  the  opinion  of  the  court:  "The  primary  cause  may 
be  the  proximate  cause  of  a  disaster,  though  it  may  operate  through 
successive  instruments,  as  an  article  at  the  end  of  a  chain  may  be 
moved  by  a  force  applied  to  the  other  end,  that  force  being  the  proxi- 
mate cause  of  the  movement,  or  as  in  the  oft-cited  case  of  the  squib 
thrown  in  the  market-place.  2  Bl.  Rep.  892.  The  question  always  is, 
Was  there  an  unbroken  connection  between  the  wrongful  act  and 
the  injury,  a  continuous  operation?  Did  the  facts  constitute  a  contin- 
uous succession  of  events,  so  linked  together  as  to  make  a  natural  whole, 
or  was  there  some  new  and  independent  cause  intervening  between 
the  wrong  and  the  injury?" 

If  this  were  an  action  against  one  who  negligently  set  the  fire  in 
the  tower,  and  thus  caused  the  injury  to  the  machinery,  it  is  clear,  on 
the  theory  of  the  plaintiff,  that  the  negligent  act  of  setting  the  fire 
would  be  deemed  the  active  efficient  cause  of  the  disruption  of  the  ma- 
chinery and  the  consequent  injury  to  the  building.  It  remains  to  in- 
quire whether  there  is  a  different  rule  in  an  action  on  a  policy  of  fire 
insurance. 

Under  our  statute  creating  a  liability  for  damages  received  from 
defects  in  highways,  it  is  held  that  the  general  rule  is  so  far  modified 
that  there  can  be  no  recovery  unless  the  defect  is  the  sole  cause  of  the 
accident;  but  this  doctrine  rests  on  the  construction  of  the  statute. 
Tisdale  v.  Norton,  8  Met.  388;  Marble  v.  Worcester,  4  Gray,  395;  Jenks 
V.  Wilbraham,  11  Gray,  142;  McDonald  v.  SneUing,  14  Allen,  290; 
Babson  v.  Rockport,  101  Mass.  93. 

In  suits  brought  on  policies  of  fire  insurance,  it  is  held  that  the 
intention  of  the  defendants  must  have  been  to  insure  against  losses 
where  the  cause  insured  against  was  a  means  or  agency  in  causing 
the  loss,  even  though  it  was  entirely  due  to  some  other  active,  effic- 
ient cause  which  made  use  of  it,  or  set  it  in  motion,  if  the  original 
efficient  cause  was  not  itself  made  a  subject  of  separate  insurance  in  the 
contract  between  the  parties.  For  instance,  where  the  negligent  act  of 
the  insured,  or  of  anybody  else,  causes  a  fire,  and  so  causes  damage. 


I 


SECT.   I.]       LYNN   GAS   &    ELECTRIC    CO.    V.   MERIDEN   INS.    CO.  83 

although  the  negligent  act  is  the  direct,  proximate  cause  of  the  damage, 
through  the  fire,  which  was  the  passive  agency,  the  insurer  is  held  liable 
for  a  loss  caused  by  the  fire.  Johnson  v.  Berkshire  Ins.  Co.,  4  Allen, 
388;  Walker  r.  Maitland,  5  B.  &  Aid.  171;  Waters  v.  Merchants' 
Louisville  Ins.  Co.,  11  Pet.  213;  Peters  v.  Warren  Ins.  Co.,  14  Pet.  99; 
General  Ins.  Co.  v.  Sherwood,  14  How.  351;  Insurance  Co.  v.  Tweed, 
7  Wall.  44.  This  is  the  only  particular  in  which  the  rule  in  regard  to 
remote  and  proximate  causes  is  applied  differently  in  actions  on  fire  in- 
surance policies  from  the  application  of  it  in  other  actions.  A  fail- 
ure sometimes  to  recognize  this  rule  as  standing  on  independent  grounds 
and  established  to  carry  out  the  intention  of  the  parties  to  contracts 
of  insurance,  has  led  to  confusion  of  statement  in  some  of  the  cases. 
The  difficulty  in  applying  the  general  rule  in  complicated  cases  has 
made  the  interpretation  of  some  of  the  decisions  doubtful;  but  on 
principle,  and  by  the  weight  of  authority  in  many  well-considered 
cases,  we  think  it  clear  that,  apart  from  the  single  exception  above 
stated,  the  question.  What  is  a  cause  which  creates  a  liability?  is  to 
be  determined  in  the  same  way  in  actions  on  policies  of  fire  insurance 
as  in  other  actions.  Scripture  v.  Lowell  Ins.  Co.,  10  Cush.  356;  New 
York  &  Boston  Despatch  Express  Co.  v.  Traders  &  Mechanics'  Ins. 
Co.,  132  Mass.  377;  St.  John  v.  American  Ins.  Co.,  1  Kernan,  516; 
General  Ins.  Co.  v.  Sherwood,  14  How.  351;  Insurance  Co.  v.  Tweed, 
7  Wall.  44;  Waters  v.  Merchants'  Louisxalle  Ins.  Co.,  11  Pet.  213, 
225;  Livie  v.  Janson,  12  East,  648;  lonides  v.  Universal  Ins.  Co., 
14  C.  B.  (N.  S.)  259;  Transatlantic  Ins.  Co.  v.  Dorsey,  56  Md.  70; 
United  Ins.  Co.  v.  Foote,  22  Ohio  St.  340. 

In  the  present  case,  the  electricity  was  one  of  the  forces  of  nature, 

—  a  passive  agent  working  under  natural  laws, —  whose  existence  was 
known  when  the  insurance  policies  were  issued.  Upon  the  theory 
adopted  by  the  jury,  the  fire  worked  through  agencies  in  the  building, 
the  atmosphere,  the  metallic  machinery,  electricity,  and  other  things; 
and  working  precisely  as  the  defendants  would  have  expected  it  to  work 
if  they  had  thoroughly  understood  the  situation  and  the  laws  appli- 
cable to  the  existing  conditions,  it  put  a  great  strain  on  the  machinery 
and  did  great  damage.  No  new  cause  acting  from  an  independent 
source  intervened.  The  fire  was  the  direct  and  proximate  cause  of  the 
damage  according  to  the  meaning  of  the  words  "  direct  and  proximate 
cause,"  as  interpreted  by  the  best  authorities.  The  instructions  to  the 
jury  were  full,  clear,  and  correct,  and  the  defendants'  requests  for 
instructions  were  rightly  refused. 

Exceptions  overruled} 

»  See  also  Phillips  v.  New  York  C.  &  H.  R.  R.  R.,  127  N.  Y.  657,  27  N.  E.  978. 

—  Ed. 


84  WOOD   V.   PENNSl  LVANIA  RAILROAD   COMP.^J^Y.       [CHAP.  III. 


WOOD  V.   PENNSYLVANIA   RAILROAD   CO. 

Supreme  Court  of  Pennsylvania,  1896. 

[Reported  177  Pa.  306.] 

Dean,  J.  We  take  the  facts  as  stated  by  the  court  below,  as  follows: 
"On  the  26th  of  October,  1893,  the  plaintiff,  having  bought  a  return 
ticket,  went  as  a  passenger  upon  the  railroad  of  the  defendant  com- 
pany from  Frankford  to  Holmesburg.  After  spending  the  day  there 
attending  to  some  matters  of  business,  he  concluded  to  come  back  upon 
a  way  train  due  at  Holmesburg  at  five  minutes  after  six  in  the  evening. 
While  waiting  for  tliis  train,  the  plaintiff  stood  on  the  platform  of  the 
station,  which  was  on  the  north  side  of  the  tracks,  at  the  eastern  end 
of  the  platform  with  his  back  against  the  wall  at  the  corner.  To  the 
eastward  of  the  station,  a  street  crosses  the  railroad  at  grade.  How  far 
this  crossing  is  from  the  station  does  not  appear  from  the  evidence. 
It  was  not  so  far  away,  however,  but  that  persons  on  the  platform 
could  see  objects  at  the  crossing.  For  at  least  one  hundred  and  fifty 
yards  to  the  eastward  of  the  crossing,  the  railroad  is  straight,  and 
then  curves  to  the  right.  About  6  o'clock,  an  express  train  coming 
from  the  eastward  upon  the  north  track  passed  the  station,  and  the 
plaintiff,  while  standing  in  the  position  described,  was  struck  upon  the 
leg  by  what  proved  to  be  the  dead  body  of  a  woman,  and  was  in- 
jured. The  headlight  of  the  approaching  locomotive  disclosed  to  one 
of  the  witnesses  who  stood  on  the  platform  two  women  in  front  of 
the  train  at  the  street  crossing,  going  from  the  south  to  the  north  side 
of  the  tracks.  One  succeeded  in  getting  across  in  safety,  and  the 
other  was  struck  just  about  as  she  reached  the  north  rail.  How  the 
woman  came  to  be  upon  the  track,  there  is  nothing  in  the  evidence  to 
show.  There  was  evidence  that  no  bell  was  rung  or  whistle  blown  upon 
the  train  which  struck  the  woman  before  it  came  to  the  crossing,  and 
some  evidence  that  it  was  running  at  the  rate  of  from  fifty  to  sixty 
miles  an  hour.  Upon  this  state  of  facts,  the  trial  judge  entered  a  non- 
suit." 

The  court  in  banc  having  afterwards  refused  to  take  off  the  nonsuit, 
we  have  this  appeal. 

Was  the  negligence  of  defendant  the  proximate  cause  of  plaintiff's 
injury?  Judge  Pennypacker,  delivering  the  opinion  of  a  majority 
of  the  court  below,  concluded  it  was  not,  and  refused  to  take  off  the 
non-suit.  Applying  the  rule  in  Hoag  r.  Railroad  Co.,  85  Pa.  293,  to 
these  facts,  the  question  on  which  the  case  turns  is:  "Was  the  injury 
the  natural  and  probable  consequence  of  the  negligence, —  such  a  con- 
sequence as  under  the  surrounding  circumstances  might  and  ought  to 
have  been  foreseen  by  the  wrongdoer  as  likely  to  flow  from  his  act." 


SECT.  I.]       WOOD   V.    PENNSYLVANIA  RAILROAD   COMPANY.  85 

As  concerns  the  situation  of  plaintiff  at  the  time  of  his  injury,  and 
the  relation  of  that  fact  to  the  cause,  whether  near  or  remote,  we  do 
not  consider  it  important.  He  was  where  he  had  a  right  to  be,  on  the 
platform  of  the  station;  that  he  had  purchased  a  ticket  for  passage 
on  defendant's  road  and  was  waiting  on  its  platform  for  his  train 
has  no  particular  bearing  on  the  question.  The  duty  of  defendant  to 
him  at  that  time  was  to  provide  a  platform  and  station,  safe  structures, 
for  him  and  others  who  desired  to  travel.  In  this  particular,  its  duty 
was  performed;  the  injury  is  not  in  the  remotest  degree  attributable 
to  the  platform  or  the  station.  It  is  sufficient  to  say,  when  there  he 
was  not  a  trespasser  on  defendant's  property,  and  therefore  his  action 
does  not  fail  for  that  reason ;  but  he  is  in  no  more  favorable  situation  as 
a  suitor,  than  if  he  had  been  walking  alongside  the  railroad,  on  the 
public  highway,  or  at  any  other  place  where  he  had  a  right  to  be. 

The  rule  quoted  in  Hoag  v.  Railroad,  supra,  is  in  substance  the  con- 
clusion of  Lord  Bacon,  and  the  one  given  in  Broom's  Legal  Maxims. 
It  is  not  only  the  well  settled  rule  of  this  state,  but  is,  generally,  that 
of  the  United  States.  Professor  Jaggard,  in  his  valuable  work  on  torts, 
after  a  reference  to  very  many  of  the  cases  decided  in  a  large  number 
of  the  states,  among  them  Hoag  v.  R.  R.  Co.,  comes  to  this  conclusion: 
"  It  is  admitted  that  the  rule  is  difficult  of  application.  But  it  is  gen- 
erally held  that  in  order  to  warrant  a  finding  that  negligence,  or  an  act 
not  amounting  to  wanton  wrong,  is  a  proximate  cause  of  an  injury, 
it  must  appear  that  the  injury  was  the  natural  and  probable  conse- 
quence of  the  negligence  or  wrongful  act,  and  that  it  ought  to  have 
been  foreseen  in  the  light  of  the  attending  circumstances:"  Jaggard 
on  Torts,  chap.  v.  Judge  Cooley  states  the  rule  thus:  "If  the  original 
act  was  wrongful,  and  would,  naturally,  according  to  the  ordinary 
course  of  events,  prove  injurious  to  some  others,  and  result,  and  does 
actually  result,  in  injury,  through  the  intervention  of  other  causes 
not  wTongful,  the  injury  shall  be  referred  to  the  wrongful  cause,  pass- 
ing through  those  which  were  innocent":  Cooley  on  Torts,  69.  This, 
also,  is  in  substance  the  rule  of  Hoag  v.  Railroad  Co.  All  the  specula- 
tions and  refinements  of  the  philosophers  on  the  exact  relations  of 
cause  and  effect  help  us  very  little  in  the  determination  of  i-ules  of 
social  conduct.  The  juridical  cause,  in  such  a  case,  as  we  have  held 
over  and  over,  is  best  ascertained  in  the  practical  affairs  of  life  by  the 
application  to  the  facts  of  the  rule  in  Hoag  v.  Railroad  Co. 

Adopting  that  rule  as  the  test  of  defendant's  liability,  how  do  we 
determine  the  natural  and  probable  consequences  which  must  be 
foreseen,  of  this  act?  We  answer,  in  this  and  all  like  cases,  from  com- 
mon experience  and  observation.  The  probable  consequence  of  cross- 
ing a  railroad  in  front  of  a  near  and  approaching  train  is  death  or 
serious  injury;  therefore,  acting  from  an  impulse  to  self-preservation, 
or  on  the  reflection  that  prompts  to  self-preservation,  we  are  deterred 
from  crossing.    Our  conduct  is  controlled  by  the  natural  and  probable 


86  WOOD  V.   PENNSYLVANIA  RAILROAD   COMPANY.       [cHAP.   III. 

consequence  of  what  our  experience  enables  us  to  foresee.  True,  a 
small  number  of  those  who  have  occasion  to  cross  railroads  are  reck- 
less, and  either  blind  to  or  disregardful  of  consequences,  cross  and 
are  injured,  killed  or  barely  escape;  but  this  recklessness  of  the  very 
few  in  no  degree  disproves  the  foreseeableness  of  the  consequences  by 
mankind  generally.  Again,  the  competent  railroad  engineer  knows, 
from  his  own  experience  and  that  of  others  in  like  employment,  that  to 
approach  a  grade  highway  crossing  with  a  rapidly  moving  train  without 
warning  is  dangerous  to  the  lives  and  limbs  of  the  public  using  the 
crossing;  he  knows  death  and  injury  are  the  probable  consequences  of  his 
neglect  of  duty,  therefore  he  gives  warning.  But  does  any  one  believe 
the  natural  and  probable  consequence  of  standing  fifty  feet  from  a  cross- 
ing to  the  one  side  of  a  railroad,  when  a  train  is  approaching,  either  with 
or  without  warning,  is  death  or  injury?  Do  not  the  most  prudent,  as 
well  as  the  public  generally,  all  over  the  land,  do  just  this  thing  every 
da,v,  without  fear  of  danger?  The  crowded  platforms  and  grounds 
of  railroad  stations,  generally  located  at  crossings,  alongside  of  ap- 
proaching, departing  and  swiftly  passing  trains,  prove  that  the  public, 
from  experience  and  observation,  do  not,  in  that  situation,  foresee 
any  danger  from  trains.  They  are  there,  because,  in  their  judgment, 
although  it  is  possible  a  train  may  strike  an  object,  animate  or  inani- 
mate, on  the  track  and  hurl  it  against  them,  such  a  consequence  is  so 
highly  improbable  that  it  suggests  no  sense  of  danger;  they  feel  as  se- 
cure as  if  in  their  homes;  to  them  it  is  no  more  probable  than  that  a 
train  at  that  point  will  jump  the  track  and  run  over  them.  If  such  a 
consequence  as  here  resulted  was  not  natural,  probable  or  foreseeable 
to  anybody  else,  should  defendant,  under  the  rule  laid  down  in  Hoag 
V.  Railroad  Co.  be  chargeable  with  the  consequence?  Clearly,  it  was 
not  the  natural  and  probable  consequence  of  its  neglect  to  give  warn- 
ing, and  therefore  was  not  one  which  it  was  bound  to  foresee.  The  in- 
jury, at  most,  was  remotely  possible,  as  distinguished  from  the  natural 
and  probable  consequence  of  the  neglect  to  give  warning.  As  is  said 
in  Railroad  Co.  r.  Trich,  117  Pa.  399:  "Responsibility  does  not  extend 
to  every  consequence  wliich  may  possibly  result  from  negligence." 

What  we  have  said  thus  far  is  on  the  assumption,  the  accident  was 
caused  solely  by  the  negligence  of  defendant,  or  by  the  concurring 
negligence  of  defendant  and  the  one  killed  going  upon  the  track  with 
a  locomotive  in  full  view.  This  being  an  action  by  an  innocent  third 
person,  he  cannot  be  deprived  of  his  remedy  because  his  injury  resulted 
from  the  concurrent  negligence  of  two  others.  He  fails  because  his 
injury  was  a  consequence  so  remote  that  defendant  could  not  reason- 
ably foresee  it.^ 

'  The  remainder  of  the  opinion  discusses  the  alleged  negligence  of  the  defendant. — 
Ed. 


SECT.  I.]  HILL  V.  WINSOR.  87 

HILL  V.   WINSOR. 
Supreme  Judicial  Court  of  Massachusetts,  1875. 

[Reported  118  Mass.  251.] 

Tort  against  the  owners  of  the  steam-tug  Argus  for  personal  in- 
juries sustained  by  the  plaintiff,  through  the  alleged  negligence  of 
those  in  charge  of  the  tug  in  causing  her  to  strike  violently  against 
the  fender  of  Warren  Bridge,  a  bridge  between  Boston  and  Charles- 
town.  Trial  in  the  Superior  Court,  before  Bacon,  J.,  who  allowed  the 
following  bill  of  exceptions: 

The  plaintiff's  evidence  tended  to  show  that  the  plaintiff,  with  other 
shipwrights  and  bridge  builders,  were,  on  December  12,  1872,  em- 
ployed by  those  in  charge  of  Warren  Bridge  to  repair  its  fender;  that 
this  fender  was  on  the  upper  side  of  it  about  eighteen  feet  from  the 
main  structiu-e,  and  extended  from  the  draw  to  the  wharf  on  the 
Charlestown  side;  that  this  fender,  when  perfect  and  in  good  order, 
consisted  of  large  oak  piles  about  fifteen  inches  in  diameter  at  the  top 
and  about  twelve  feet  apart,  driven  perpendicularly  into  the  bed  of  the 
river,  and  two  driven  at  a  shght  incline  therefrom,  trending  down  the 
river,  and  fastened  to  the  lower  part  of  the  upright  piles,  and  one 
trending  up  the  river,  whose  top  was  fitted  to,  or  intended  to  fit,  the 
top  of  the  upright  pile,  and  to  be  fastened  to  it  and  to  the  cap  thereon 
by  spikes,  the  two  piles  trending  down  the  river  being  of  less  length  and 
diameter  than  the  others ;  that  this  cap,  consisting  of  yellow  pine  timl^er 
fifteen  inches  square,  extended  along  the  whole  row  of  piles,  resting 
upon  the  tops  of  the  same;  that  on  said  day  a  foreman,  with  six  work- 
men, including  the  plaintiff,  were  employed  in  repairing  the  fender; 
that  they  worked  in  three  parties,  each  party  standing  on  planks  sus- 
tained by  spikes  driven  into  the  upper  spurshores  or  inclined  piles  of 
the  fender,  and  about  nine  or  ten  feet  above  the  water  of  the  river; 
that  it  was  then  half  tide,  the  river  deep,  and  the  ebb-tide  setting 
down  at  the  rate  of  three  to  four  miles  per  hour;  that  the  men  were 
standing  on  the  planks,  and  working  in  pairs  fitting  the  heads  of  the 
upper  inclined  pile  or  spurshore  to  the  cap  and  to  the  tops  of  the 
upright  piles;  that  two  of  these  men  were  towards  the  Charlestown 
side  from  the  plaintiff,  and  were  working  at  a  pile  about  thirty  feet  east 
from  the  spurshore  where  several  of  the  defendants'  witnesses  testified 
that  the  tug  struck;  that  the  plaintiff  was  at  work,  standing  alone  on 
a  plank  about  sixty  feet  east  from  said  spurshore,  his  companion  hux- 
ing  left  him  a  short  time  previously;  that,  in  order  to  fit  his  spurshore 
to  the  pile  and  cap,  he  had  put  in  a  brace  about  twelve  inches  long  and 
three  inches  in  diameter,  to  keep  the  spurshore  and  pile  apart  while 
he  was  at  work;  that  two  more  workmen  were  fitting  a  spurshore  about 
sixty  feet  east  of  the  plaintiff,  and  the  foreman  of  the  work  was  on 
the  bridge;  that  a  portion  of  the  spurshores  were  not  completed  and 


88  HILL   r.   WINSOR.  [chap.  III. 

fastened  to  the  caps;  that  a  f^w  minutes  before  the  tug  struck  against 
the  spurshore,  she  had  come  down  to  the  entrance  of  the  draw  from 
some  point  above  the  bridge.  The  defendants'  ev-idence  showed  that 
their  vessel  .was  about  sixty -five  feet  in  length;  that  while  at  the 
fh'aw  the  master  of  the  tug  was  requested  to  tow  down  a  raft  lying 
near  the  Fitchburg  Railroad  Bridge,  and,  finding  it  difficult  or  impos- 
sible to  turn  around,  he  backed  his  tug  towards  the  CharlestowTi 
shore,  but  was  not  able  to  reach  the  raft,  as  the  tide  swept  him  down 
towards  the  fender  of  the  Warren  Bridge;  that,  as  he  backed  over,  he 
passed  near  the  fender,  and  was  seen  by  the  workmen  thereon  who 
were  Ansible  from  his  deck. 

The  plaintiff's  e\'idence  further  tended  to  show  that  when  the  master 
of  the  tug  was  nearly  across  the  river,  but  could  not  reach  the  raft, 
and  had  drifted  within  a  short  distance  of  the  fender,  he  started  the 
tug  with  a  xdew  to  return  to  the  draw,  and  after  running  towards 
Boston,  about  her  length,  at  the  rate  of  three  to  four  miles  an  hour, 
struck  one  of  the  upper  spurshores  of  the  fender  at  the  point  above 
described;  that  the  blow  jan-ed  the  fender  for  the  distance  of  ninety 
feet;  that  the  workmen,  on  the  planks  hung  over  the  river,  as  soon  as 
they  heard  the  tug  and  saw  it  coming,  sprung  from  their  planks  to 
reach  the  top  of  the  fender,  and  all  reached  the  cap  except  the  plaintiff, 
who  testified  that,  as  he  was  at  work,  the  first  he.  knew  he  heard  a 
puffing  noise  coming  along,  and  he  turned  his  head  and  looked,  and  saw 
the  boat  coming,  and  just  as  he  tlirew  his  hands  over  his  head  to  grab  at 
the  pile,  so  as  to  jump  upon  the  cap,  and  just  as  he  grabbed  the  top  of 
the  pile,  she  struck  about  three  piles  from  where  he  was,  and  the 
moment  she  struck  there  was  a  jar  that  jarred  the  whole  thing,  and 
knocked  his  brace  out,  and  the  piles  came  right  together  as  quick  as 
a  flash,  and  caught  his  fingers  between  the  pile  and  the  cap,  and  his 
knee  ran  in  between  the  two  piles  below  the  cap,  and  there  he  was  fast ; 
that  he  never  heard  or  saw  the  boat  until  he  heard  the  puffing  noise, 
and  looked  round  and  saw  her  coming;  that  after  she  first  struck  she 
came  passing  along,  striking  one  pile  and  the  other;  that  she  went 
right  along  and  struck  the  pile  he  was  fast  in,  and  she  ran  her  whole 
length  right  up  hard  against  it,  and  passed  right  on  until  she  got  one 
or  two  piles  by  him;  that  he  was  thus  seriously  injured.^ 

Colt,  J.  In  actions  of  this  description,  the  questions  whether 
the  plaintiff  was  himself  in  the  exercise  of  due  care,  and  the  defendants' 
act  negligent,  whether  the  injury  suffered  was  due  to  that  act,  as  well 
as  the  amount  of  damage  to  the  plaintiff,  are,  as  a  general  rule,  practical 
questions  of  fact  to  l)e  settled  by  the  knowledge  and  experience  of  the 
jury.  The  defendants'  liability  depends  upon  circumstances  which, 
as  the  cases  arise,  are  of  infinite  variety  and  combination.  If  there  is 
any  e\adence  upon  which  the  jury  may  legally  found  a  verdict  for  the 
plaintiff,  that  verdict  cannot  be  disturbed  on  exceptions  as  matter  of 

1  The  remainder  of  the  testimony  and  part  of  the  opinion  are  omitted. — Ed. 


SECT.   I.]  RYAX  V.  NEW  YORK  CENTR.\L   R.\ILROAD   CO.  89 

law,  unless  there  has  been  some  error  in  the  conduct  of  the  trial,  or  the 
judge  has  failed  to  state  the  true  test  of  liability  ir  his  instructions  as 
applied  to  the  facts  disclosed. 

Under  the  instructions  given  in  the  present  case,  the  jury  must 
have  found  that  the  injury  of  the  plaintiff  was  caused  by  neglect 
or  want  of  ordinary  care  on  the  part  of  those  who,  as  agents  and  ser- 
vants of  the  defendants,  had  charge  of  the  tug-boat ;  and  that  this  neg- 
ligence consisted  in  not  using  such  care  in  its  navigation  and  manage- 
ment as  persons  of  ordinary  prudence  would  use  under  circumstances 
of  like  exposure  and  danger.  They  must  have  also  found  that  the 
plaintiflF  was  himself  in  the  exercise  of  due  care  in  attempting  to  escape 
the  peril  to  which  he  was  exposed  by  the  defendants'  conduct,  and  that 
his  injury  was  therefore  due  solely  to  the  defendants'  negligence.  The 
e\ddence  reported  justifies  these  findings.  The  structure  upon  which 
the  plaintiff  was  at  work  was  imperfect  and  out  of  repair.  Its  condition 
at  the  time,  the  plaintiff's  exposed  position  upon  it,  and  the  knowledge 
of  that  exposure  which  those  in  charge  of  the  boat  had,  or  in  the  exercise 
of  due  care  might  have  had,  were  elements  affecting  the  question  of  the 
defendants'  negligence  to  which  the  attention  of-  the  jury  was  especially 
called.  It  cannot  be  said,  as  matter  of  law,  that  the  jury  might  not 
properly  find  it  ob\aously  probable  that  injury  in  some  form  would  be 
caused  to  those  who  were  at  work  on  the  fender  liy  the  act  of  the  de- 
fendants in  running  against  it.  This  constitutes  negligence,  and 
it  is  not  necessary  that  injury  in  the  precise  form  in  which  it  in  fact 
resulted  should  have  been  foreseen.  It  is  enough  that  it  now  appears 
to  have  been  a  natural  and  probable  consequence.  Lane  v.  Atlantic 
Works,  111  Mass.  136,  and  cases  cited. 


RYAN  V.    NEW  YORK  CENTRAL  RAILROAD  CO. 

Court  of  Appeals  of  New  York,  1866. 

[Reported  35  .V.    Y.  210.] 

Hunt,  J.  On  the  15th  day  of  July,  1854,  in  the  city  of  Syracuse, 
the  defendant,  by  the  careless  management,  or  through  the  insufficient 
condition,  of  one  of  its  engines,  set  fire  to  its  woodshed,  and  a  large 
quantity  of  wood  therein.  The  plaintiff's  house,  situated  at  a  distance 
of  one  hundred  and  thirty  feet  from  the  shed,  soon  took  fire  from  the 


90  RYAN  V.   NEW   YORK   CENTRAL   RAILROAD   CO.       [ciL\P.   III. 

heat  and  sparks,  and  was  entirely  consumed,  notwithstanding  diH- 
gent  efforts  were  made  to  save  it.  A  number  of  other  houses  were  also 
burned  by  the  spreading  of  the  fire.  The  plaintiff  brings  this  action 
to  recover  from  the  railroad  company  the  value  of  his  building  thus 
destroyed.  The  judge  at  the  Circuit  non-suited  the  plaintiff,  and  the 
General  Term  of  the  fifth  district  affirmed  the  judgment. 

The  question  may  be  thus  stated:  A  house  in  a  populous  city  takes 
fire,  through  the  negligence  of  the  owner  or  his  servant;  the  flames 
extend  to  and  destroy  an  adjacent  building:  Is  the  owner  of  the  first 
building  liable  to  the  second  owner  for  the  damage  sustained  by  such 
burning? 

It  is  a  general  principle  that  every  person  is  liable  for  the  conse- 
quences of  his  own  acts.     He  is  thus  liable  in  damages  for  the  proxi- 
mate results  of  his  own  acts,  but  not  for  remote  damages.     It  is  not 
easy  at  all  times  to  determine  what  are  proximate  and  what  are  re- 
mote damages.     In  Thomas  v.  Winchester  (2  Seld.  408),  Judge  Ruggles 
defines  the  damages  for  which  a  party  is  liable,  as  those  which  are  the 
natural  or  necessary  consequences  of  his  acts.     Thus,  the  owner  of  a 
loiaded  gun,  who  puts  it  in  the  hands  of  a  child,  by  whose  indiscretion 
it  is  discharged,  is  liable  for  the  injury  sustained  by  a  third  person  from 
such  discharge.     (5  Maule  &  Sel.  198.)     The  injury  is  a  natural  and 
ordinary  result  of  the  folly  of  placing  a  loaded  gun  in  the  hands  of 
one  ignorant  of  the  manner  of  using  it,  and  incapable  of  appreciating 
its  effects.    The  owner  of  a  horse  and  cart,  who  leaves  them  unattended 
in  the  street,  is  liable  for  an  injury  done  to  a  person  or  his  property, 
by  the  running  away  of  the  horse  (Lynch  r.  Nurdin,  1  Adol.  &  Ellis, 
'  N.  S.,  29;  Illidge  v.  Goodin,  5  Car.  &  P.  190),  for  the  same  reason. 
The  injury  is  the  natural  result  of  the  negligence.     If  the  party  thus 
injured  had,  however,  by  the  delay  or  confinement  from  his  injury, 
been   prevented   from   completing   a   valuable   contract,   from   which 
he  expected  to  make  large  profits,  he  could  not  recover  such  expected 
profits  from  the  negligent  party,  in  the  cases  supposed.     Such  dam- 
ages would  not  be  the  necessary  or  natural  consequences,  nor  the  re- 
sults ordinarily  to  be  anticipated,   from  the  negligence  committed. 
(6  Hill,  522;  13  Wend.  601;  3  E.  D.  Smith,  144.)     So  if  an  engineer 
upon  a  steamboat  or  locomotive,  in  passing  the  house  of  A.,  so  care- 
lessly manages  its  machinery  that  the  coals  and  sparks  from  its  fires 
fall  upon  and  consume  the  house  of  A.,  the  railroad  company  or  the 
steamboat  proprietors  are  liable  to  pay  the  value  of  the  property  thus 
destroyed.     (Field  v.  N.  Y.  Central  R.  R.,  32  N.  Y.  339.)    Thus  far 
the  law  is  settled  and  the  principle  is  apparent.     If,  however,  the  fire 
^conununicates  from  the  house  of  A.  to  that  of  B.,  and  that  is  destroyed, 
is  the  negligent  party  liable  for  his  loss?    And  if  it  spreads  thence  to  the 
house  of  C,  and  thence  to  the  house  of  D.,  and  thence  consecutively 
through  the  other  houses,  until  it  reaches  and  consumes  the  house  of 
Z.,  is  the  party  liable  to  pay  the  damages  sustained  by  these  twenty- 


SECT.  I.]  RYAN  V.   NEW   YORK   CENTRAL  RAILROAD   CO.  91 

four  suflFerers?  The  counsel  for  the  plaintiff  does  not  distinctly  claim 
this,  and  I  think  it  would  not  be  seriously  insisted  that  the  sufferers 
could  recover  in  such  case.  Where,  then,  is  the  principle  upon  which  A. 
recovers  and  Z.  fails? 

It  has  been  suggested  that  an  important  element  exists  in  the  differ- 
ence between  an  intentional  firing  and  a  negligent  firing  merely;  that 
when  a  party  designedly  fires  his  own  house  or  his  own  fallow  land, 
not  intending,  however,  to  do  any  injury  to  his  neighbor,  but  a  damage 
actually  results,  that  he  may  be  liable  for  more  extended  damages 
than  where  the  fire  originated  in  accident  or  negligence.     It  is  true 
that  the  most  of  the  cases  where  the  Iial)ility  was  held  to  exist,  were  cases 
of  an  intentional  firing.     The  case,  however,  of  Vaughn  v.  Menlove 
(32  Eng.  C.  L.  613)  was  that  of  a  spontaneous  combustion  of  a  hay- 
rick.   The  rick  was  burned,  the  owner's  liuihlings  were  destroyed,  and 
thence  the  fire  spread  to  the  plaintiff's  cottage,  which  was  also  con- 
sumed.    The  defendant  was  held  liable.     Without  deciding  upon  the 
importance  of  this  distinction,  I  prefer  to  place  my  opinion  upon  the 
ground  that,  in  the  one  case,  to  wit,  the  destruction  of  the  building  upon 
which  the  sparks  were  thrown  by  the  negligent  act  of  the  party  sought 
to  be  charged,  the  result  was  to  have  been  anticipated  the  moment 
the  fire  was  communicated  to  the  building;  that  its  destruction  was 
the  ordinary  and  natural  result  of  its  being  fired.    In  the  second,  third 
or  twenty-fourth  case,  as  supposed,  the  destruction  of  the  l^uilding  was 
not  a  natural  and  expected  result  of  the  first  firing.     That  a  building 
upon  which  sparks  and  cinders  fall  should  be  destroyed  or  seriously 
injured  must  be  expected,  but  that  the  fire  should  spread  and  other 
buildings  be  consumed,  is  not  a  necessary  or  an  usual  result.    That  it 
is  possible,  and  that  it  is  not  unfrequent,  cannot  be  denied.    The  result, 
however,  depends,  not  upon  any  necessity  of  a  further  communica- 
tion of  the  fire,  but  upon  a  concurrence  of  accidental  circumstances,  such 
as  the  degree  of  the  heat,  the  state  of  the  atmosphere,  the  condition 
and  materials  of  the  adjoining  structures  and  the  direction  of  the  wind. 
These  are  accidental  and  varying  circumstances.     The  party  has  no 
control  over  them,  and  is  not  responsible  for  their  effects. 

My  opinion,  therefore,  is,  that  this  action  cannot  be  sustained,  for 
the  reason  that  the  damages  incurred  are  not  the  immediate  but  the 
remote  result  of  the  negligence  of  the  defendants.  The  immediate 
result  was  the  destruction  of  their  own  wood  and  sheds;  beyond  that, 
it  was  remote. 

There  are  some  cases  whicli,  from  the  frequency  of  their  citation, 
and  their  apparent  inconsistency  with  the  view  I  have  taken,  should 
be  considered  in  this  connection.^ 

Without  determining  its  effect,  it  will  be  observed,  that  the  fact 
exists  in  each  of  these  cases,  that  the  first  act  or  impulse  was  volun- 

'  The  foiirt  here  considered  the  cases  of  Scott  r.  Shepherd  2  W.  Bl.  893;  \'andea- 
burgh  V.  Truax,  4  Den.  464;  Guille  c.  Swan,  li)  Johns.  :iS\. —  Ed. 


92  RY.IN  V.  NEW   YORK   CEXTR-\L  RAILROAD   CO.       [CHAP.  III. 

tary  and  intentional  on  the  part  of  the  defendant.  Shepherd  inten- 
tionally threw  his  squib;  Truax  intentionally  drove  the  negro  boy;  and 
Swan  intentionally  descended  into  the  plaintiff's  garden  and  invoked 
the  aid  of  the  multitude.  In  each  case,  too,  the  result  was  deemed  by 
the  court  to  be  the  inevitable  consequence  of  the  original  unlawful 
or  improper  act.  There  would  seem  to  be  no  inconsistency  in  prin- 
ciple between  either  of  these  cases  and  the  conclusion  already  announced 
in  the  present  case.  \Miether  the  principle  has  been  always  correctly 
applied,  it  is  not  necessary  to  determine. 

That  the  defendant  is  not  liable  in  this  action  may  also  be  strongly 
argued,  from  the  circumstance  that  no  such  action  as  the  present  has 
ever  been  sustained  in  any  of  the  courts  of  this  covmtry,  although  the 
occasion  for  it  has  been  frequent  and  pressing.  Particular  instances  are 
familiar  to  all,  where  such  claims  might  have  been  made  with  pro- 
priety. The  instance  of  the  Harpers,  occurring  a  few  years  since,  is  a 
striking  one.  (22  N.  Y.  441).  Their  large  printing  establishment,  in 
the  city  of  New  York,  was  destroyed  by  the  gross  carelessness  of  a 
workman,  in  throwing  a  lighted  match  into  a  vat  of  camphene.  The 
fire  extended,  and  other  buildings  and  much  other  property  was  de- 
stroyed. The  Harpers  were  gentlemen  of  wealth,  and  able  to  re- 
spond in  damages  to  the  extent  of  their  liability.  Yet  we  have  no 
report  in  the  books,  and  no  tradition,  of  any  action  brought  against 
them  to  recover  such  damages.  The  novelty  of  the  claim,  as  was  said  by 
Judge  Beardsley,  in  Costigan  v.  M.  &  H.  R.  R.  Co.,  where  the  occasion 
for  its  being  made  had  been  so  common,  is  a  strong  argument  against 
its  validity.  (2  Denio,  609.)  In  The  People  v.  Clark  (10  Barb.  143), 
Judge  Cady  says :  "  The  fact  that  the  plaintiffs  have  never  before  this 
commenced  an  action  to  vacate  a  grant  made  by  the  king,  because  it 
was  made  upon  false  suggestions,  furnishes  strong  evidence  that  the 
plaintiff's  never  had  the  right  to  bring  such  an  action."  It  was 
Littleton's  rule,  "what  never  was,  never  ought  to  be."    (1  Ver.  385.) 

To  sustain  such  a  claim  as  the  present,  and  to  follow  the  same  to  its 
legitimate  consequences,  would  subject  to  a  liability  against  which  no 
prudence  could  guard,  and  to  meet  which  no  private  fortune  would 
be  adequate.  Nearly  all  fires  are  caused  by  negligence,  in  its  extended 
sense.  In  a  country  where  wood,  coal,  gas  and  oils  are  universally 
used,  where  men  are  crowded  into  cities  and  villages,  where  servants 
are  employed,  and  where  children  find  their  home  in  all  houses,  it  is 
impossible  that  the  most  vigilant  prudence  should  guard  against 
the  occurrence  of  accidental  or  negligent  fires.  A  man  may  insure 
his  own  house  or  his  own  furniture,  but  he  canncH:  insure  his  neighbor's 
building  or  furniture,  for  the  reason  that  he  has  no  interest  in  them. 
To  hold  that  the  owner  must  not  only  meet  his  own  loss  by  fire,  but 
that  he  must  guarantee  the  security  of  his  neighbors  on  both  sides, 
and  to  an  unlimited  extent,  would  be  to  create  a  liability  which  would 
be  the  destruction  of  all  civilized  society.     No  community  could  long 


SECT.  I.]       SMITH   V.   LONDON   &   SOUTHWESTERN   RAILWAY   CO.  93 

exist,  under  the  operation  of  such  a  principle.  In  a  commercial  country, 
each  man,  to  some  extent,  runs  the  hazard  of  his  neighbor's  conduct, 
and  each,  by  insurance  against  such  hazards,  is  enabled  to  obtain  a 
reasonable  security  against  loss.  To  neglect  such  precaution,  and  to 
call  upon  his  neighbor,  on  whose  premises  a  fire  originated,  to  indemnify 
him  instead,  would  be  to  award  a  punishment  quite  beyond  the  offense 
committed.  It  is  to  be  considered,  also,  that  if  the  negligent  party 
is  liable  to  the  owner  of  a  remote  building  thus  consumed,  he  would  also 
be  liable  to  the  insurance  companies  who  should  pay  losses  to  such 
remote  owners.  The  principle  of  subrogation  would  entitle  the  com- 
panies to  the  benefit  of  every  claim  held  by  the  party  to  whom  a  loss 
should  be  paid. 

In  deciding  this  case,  I  have  examined  the  authorities  cited  from  the 
Year  Books,  and  have  not  overlooked  the  English  statutes  on  the 
subject,  or  the  English  decisions  extending  back  for  many  years.  It 
will  not  be  useful  further  to  refer  to  these  authorities,  and  it  will  be 
impossible  to  reconcile  some  of  them  with  the  view  I  have  taken. 

The  remoteness  of  the  damage,  in  my  judgment,  forms  the  true  rule 
on  which  the  question  should  be  decided,  and  which  prohibits  a  recovery 
by  the  plaintiff  in  this  case.^ 

Judgment  should  be  affirmed. 


SMITH  V.  LONDON  &  SOUTHWESTERN  RAILWAY  CO. 

Court  of  Common  Pleas,  1870. 
[Reported  L.  R.  6  C.  P.  14.] 

Appeal  from  a  decision  of  the  Court  of  Common  Pleas,  discharging 
a  rule  to  enter  a  verdict  for  the  defendants  or  a  non-suit. 

This  was  an  action  for  negligence,  and  the  declaration  contained 
three  counts,  of  which  the  second  and  only  material  one  was  as  fol- 
lows :  — 

"  That  at  the  time  of  the  committing  by  the  defendants  of  the  griev- 
ances in  this  count  mentioned,  the  plaintiff  was  possessed  of  a  cottage 
and  premises,  and  the  defendants  were  possessed  of  and  had  the  care 
and  management  of  a  railway  running  near  the  said  cottage  and  prem- 
ises, with  banks  belonging  thereto,  and  part  of  the  said  railway,  and 
were  possessed  of  locomotive  engines  containing  burning  substances, 
which  were  used  by  the  defendants  for  conveying  carriages  along  this 
railway.  Yet,  by  the  negligence  and  improper  conduct  of  the  defend- 
ants, and  the  want  of  due  care  on  the  part  of  the  defendants  in  the 

1  See  also  O'Neill  v.  New  York  O.  &  W.  Ry.,  116  N.  Y.  579,  22  N.  E.  217;  Read 
t.  Nicholas,  118  N.  Y.  224,  23  N.  E.  468;  Hoag  v.  Lake  Shore  &  M.  S.  R.  R.,  85  Pa. 
293.—  Ed. 


9i       SMITHj;.   I,ONDOX   &   SOUTHWESTERX  RAILWAY  CO.       [CHAP.  III. 

keeping  and  management  of  their  said  railway  engines  and  banks, 
quantities  of  cut  grass  and  hedge  trimmings  were  heaped  up  on  the 
said  railway  and  banks,  and  became  and  were  ignited,  and  a  fire  was 
occasioned  which  spread  over  and  along  a  stubble-field,  near  the  said 
railway  unto  the  said  cottage  and  premises,  and  set  fire  to  the  sam.e, 
and  thereby  the  same  and  the  plaintiff's  furniture,  &c.,  then  being  in 
and  near  the  said  cottage  and  premises,  were  l)urnt  and  destroyed, 
and  tlie  plaintiff  lost  the  use  and  enjoyment  of  the  same." 

The  defendants  pleaded  not  guilty,  and  issue  was  joined  thereon. 

The  case  was  tried  before  Keating,  J.,  at  the  summer  assizes,  1869, 
held  at  Dorchester,  when  evidence  was  given  for  the  plaintiff,  which 
was    in    substance    as    follows :  — 

It  was  proved  that  the  defendants'  railway  passed  near  the  plaintiff's 
cottage,  and  that  a  small  strip  of  grass  extended  for  a  few  feet  on 
each  side  of  the  line,  and  was  bounded  by  a  hedge  which  formed  the 
boundary  of  the  defendants'  land;  beyond  the  hedge  was  a  stubble- 
field,  bounded  on  one  side  by  a  road,  beyond  which  was  the  plaintiff's 
cottage.  About  a  fortnight  before  the  fire  the  defendants'  servants 
had  trimmed  the  hedge  and  cut  the  grass,  and  left  the  trimmings  and 
cut  grass  along  the  strip  of  grass.  On  the  morning  of  the  fire  the  com- 
pany's servants  had  raked  the  trimmings  and  cut  grass  into  small 
heaps.  The  summer  had  been  exceedingly  dry,  and  there  had  been 
many  fires  about  in  consequence.  On  the  day  in  question,  shortly 
after  two  trains  had  passed  the  spot,  a  fire  was  discovered  upon  the 
strip  of  grass  land  forming  part  of  the  defendants'  property;  the  fire 
spread  to  the  hedge  and  burnt  through  it,  and  caught  the  stubble-field, 
and,  a  strong  wind  blowing  at  the  time,  the  flames  ran  across  the  field  for 
200  yards,  crossed  the  road,  and  set  fire  to  and  burnt  the  plaintiff's 
cottage.  There  was  no  evidence  that  the  defendants'  engines  were 
improperly  constructed  or  worked;  there  was  no  evidence  except  the 
fact  that  the  engines  had  recently  passed,  to  show  that  the  fire  origi- 
nated from  them.  There  was  no  e^^dence  whether  the  fire  originated 
in  one  of  the  heaps  of  trimmings  or  on  some  other  part  of  the  grass 
by  the  side  of  the  line;  but  it  was  proved  that  several  of  the  heaps  were 
burnt  by  the  fire.  Two  of  the  company's  servants  were  proved  to 
have  been  close  to  the  spot  when  the  fire  broke  out,  and  to  have  given 
the  alarm,  but  they  were  not  called  by  either  side. 

At  the  close  of  the  plaintiff's  case  the  counsel  for  the  defendants  sub- 
mitted that  there  was  no  case  to  go  to  the  jury.  At  the  suggestion 
of  the  judge,  and  by  consent,  a  verdict  was  taken  for  the  plaintiff  for 
30/.,  subject  to  leave  reserved  to  the  defendants  to  move  to  set  it  aside, 
and  instead  thereof  to  enter  a  verdict  for  them,  on  the  ground  that 
tliere  was  no  evidence  to  go  to  the  jury  of  any  liability  on  the  part  of  the 
defenflants.  The  court  to  be  at  liberty  to  draw  inferences  and  to  amend 
the  pleadings. 

The  defendants  applied  for  and  obtained  a  rule  pursuant  to  the 


SECT.  I.]       SMITH   V.   LONDON   &    S0UTIIWESTP:RX   IIAILWAY   CO.  95 

leave  reserved,  which,  after  argument,  ■was  discharged,  and  from  the 
judgment  so  given  discharging  the  rule  the  present  appeal  was  brought. 

Kingdon,  Q.  C.  (Murch  with  him),  for  the  defendants.  There  is  no 
e\'idence  that  the  trimmings  was  the  cause  of  the  fire.  It  w^as  proved 
that  they  were  partially  consumed  by  it,  but  not  that  it  originated  in 
them.  Nor  was  there  any  evidence  that  the  fire  was  caused  by  sparks 
coming  from  the  engine.  There  were  many  other  ways  in  which  it 
may  have  begun  which  are  equally  consistent  with  the  evidence.  Thus, 
a  fusee  may  have  been  thrown  from  a  window  of  one  of  the  carriages 
of  the  train,  or  one  of  their  workmen  on  the  line  may  have  dropped  a 
spark  from  his  pipe.  Where  the  evidence  is  equally  consistent  with  the 
view  that  the  defendants  were  liable,  and  that  they  were  not,  there  is 
no  evidence  to  go  to  the  jury. 

Kelly,  C.  B.  I  certainly  entertained  some  doubts  during  the  argu- 
ment as  to  whether  the  judgment  of  the  Court  below  could  be  sustained; 
but  when  I  consider  the  facts,  I  cannot  but  feel  that  it  is  a  case  in  which 
there  was  some  evidence  of  negligence  on  the  part  of  the  defendants, 
and  negligence  which  caused  the  injury  complained  of.  It  appears 
that  about  the  time  that  the  spot  in  question  was  passed  by  an  engine 
which,  as  we  know,  would  emit  sparks  which  would  fall  on  the  adjoin- 
ing ground,  a  fire  was  discovered  on  the  defendants'  ground  adjoin- 
ing the  line.  It  appears  that  it  had  been  a  dry  summer,  and  the  hot 
weather  had  continued  for  many  weeks  before  the  occurrence;  and 
probably  with  a  view  to  prevent  mischief,  the  defendants  I'lad  caused 
the  grass  that  grew  by  the  line  and  the  fence  to  be  cut,  and  the  cuttings 
of  the  grass  and  hedge  were  placed  in  small  heaps  on  the  ground  between 
the  rails  and  the  hedge.  On  the  other  side  of  the  hedge  was  a  stubble- 
field  of  considerable  extent  which  would  be  extremely  dry,  and  at  a  dis- 
tance of  two  hundred  yards  across  a  road  was  the  cottage  belonging  to 
the  plaintiff.  This  was  the  state  of  facts.  The  trimmings  caught  fire, 
there  was  a  strong  south-east  wind  blowing;  and  though  we  have  no 
proof  of  the  exact  progress  of  the  fire,  because  the  company's  servants 
who  had  seen  it  were  not  called,  it  appears  to  have  extended  to  and 
through  the  hedge  and  across  the  field  to  the  plaintiff's  cottage  which 
was  burnt.  The  question  for  us  is,  how  all  this  occurred.  There  is 
some  doubt  how  the  fire  originated,  but  there  was  ample  evidence 
for  the  jury,  which  would  have  been  rightly  left  to  them,  that  it  ori- 
ginated from  sparks  from  the  engine  falling  on  the  dry  heaps  of  trim- 
mings, and  thence  extending  to  the  hedge  and  stubble-field.  If  that 
was  so,  the  question  arises  whether  there  was  any  negligence  in  the 
defendants. 

Now  it  can  scarcely  be  doubted  that  the  defendants  were  bound 
in  such  a  summer,  knowing  that  trains  were  passing  from  which 
sparks  might  fall  upon  them,  to  remove  these  heaps  of  trimmings;  and, 
at  any  rate,  it  was  a  question  for  the  jury  whether  it  was  not  negligent 
of  them  not  to  do  so.    I  think,  therefore,  there  was  a  case  for  the  jury 


96       SMITH  V.   LONDON  &   SOUTinV^STERN   RAILWAY   CO.       [CIL\P.  III. 

on  which  they  might  reasonabl\'  have  found  that  the  defendants  were 
neghgent  in  not  removing  the  trimmings  as  soon  as  possible,  and  that 
this  was  the  cause  of  the  injury.  Then  comes  the  question  raised  by 
Brett,  J.,  to  which  at  first  I  was  inchned  to  give  some  weight.  He  puts 
it  thus:  "I  cjuite  agree  that  the  defendants  ought  to  have  anticipated 
that  sparks  might  be  emitted  from  their  engines,  notwithstanding  that 
they  were  of  the  best  construction,  and  were  Avorked  without  negUgence, 
and  that  they  might  reasonably  have  anticipated  that  the  rummage  and 
hedge  trimmings  allowed  to  accummulate  might  be  thereby  set  on  fire. 
But  I  am  of  opinion  that  no  reasonable  man  would  have  foreseen  that 
the  fire  would  consume  the  hedge  and  pass  across  a  stubble-field,  and  so 
get  to  the  plaintiff's  cottage  at  the  distance  of  200  yards  from  the  rail- 
way, crossing  a  road  in  its  passage."  It  is  because  I  thought,  and  still 
think,  the  proposition  is  true  that  any  reasonable  man  might  well  ha\e 
failed  to  anticipate  such  a  concurrence  of  circumstances  as  is  here 
described  that  I  felt  pressed  at  first  by  this  view  of  the  question;  but 
on  consideration  I  do  not  feel  that  that  is  a  true  test  of  the  liability  of 
the  defendants  in  this  case.  It  may  be  that  they  did  not  anticipate, 
and  were  not  bound  to  anticipate,  that  the  plaintiff's  cottage  would  be 
burnt  as  a  result  of  their  negligence;  but  I  think  the  law  is,  that  if 
they  were  aware  that  these  heaps  were  lying  by  the  side  of  the  rails, 
and  that  it  was  a  hot  s.eason,  and  that  therefore  by  being  left  there  the 
heaps  were  likely  to  catch  fire,  the  defendants  were  bound  to  provide 
against  all  circumstances  which  might  result  from  this,  and  were 
responsible  for  all  the  natural  consequences  of  it.  I  think,  then,  tliere 
was  negligence  in  the  defendants  in  not  removing  these  trimmings,  and 
that  they  thus  became  responsible  for  all  the  consequences  of  their  con- 
duct, and  that  the  mere  fact  of  the  distance  of  this  cottage  from  the 
point  where  the  fire  broke  out  does  not  affect  their  liability,  and  that  the 
judgment  of  the  Court  below  must  be  affirmed. 

Martin,  B.  I  am  of  the  same  opinion.  The  only  question  r/e  have 
to  decide  is,  whether  there  was  any  e\adence  for  the  jury  of  negligence 
on  the  part  of  defendants  which  caused  the  injury  complained  of. 
The  facts  are,  that  the  plaintiff  had  a  cottage  near  the  railway,  and 
that  he  was  perfectly  innocent  of  any  thing  that  could  conduce  to 
his  loss,  and  that  he  had  his  house  burned  down.  The  question  is,  did 
the  fire  come  there  from  any  negligent  act  of  the  defendants?  I  think 
there  is  cAadence  that  it  did.  There  was  evidence  of  the  trimmings 
being  improperly  left  by  the  defendants  by  the  side  of  their  line,  and 
that  a  spark  from  a  passing  engine  fell  on  them  and  caused  the  fire, 
which  was  thus  due  to  the  defendant's  negligence. 

Bramwell,  B.,  concurred. 

Channell,  B.  I  am  of  the  same  opinion.  I  quite  agree  that  where 
there  is  no  direct  evidence  of  negligence,  the  question  what  a  reason- 
able man  might  foresee  is  of  importance  in  considering  the  question 
whether  there  is  evidence  for  the  jury  of  negligence  or  not,  and  this  is 


SECT.  I.]       SMITH   V.    LONDON  &   SOUTHWESTERN  RAILWAY   CO.  97 

what  is  meant  by  Bramwell,  B.,  in>his  jufl^ment  in  Blyth  v.  Birming- 
ham Waterworks  Co.,  11  Ex.  781;  25  L.  J.  (Ex.)  212,  referred  to  by 
Mr.  Kingdon;  but  when  it  has  been  once  determined  that  there  is  evi- 
dence of  neghgence,  the  person  guilty  of  it  is  equally  liable  for  its  con- 
sequences, whether  he  could  have  foreseen  them  or  not. 

Blackburx,  J.  I  also  agree  that  what  the  defendants  might  reason- 
ably anticipate  is,  as  my  Brother  Channel  has  said,  only  material  with 
reference  to  the  question  whether  the  defendants  were  negligent  or  not, 
and  cannot  alter  their  liability  if  they  were  guilty  of  negligence.  I 
have  still  some  doubts  whether  there  was  any  evidence  that  they  were 
negligent,  but  as  all  the  other  judges  are  of  opinion  that  there  was 
evidence  that  they  were,  I  am  quite  content  that  the  judgment  of  the 
Court  below  should  be  affirmed.  I  do  not  dissent,  but  I  have  some 
doubt,  and  will  state  from  what  my  doubt  arises.  I  take  it  tl^it,  since 
the  case  of  Vaughan  v.  Taff  Vale  Ry.  Co.,  5  H.  &  N.  679;  29  L.  J.  (Ex.) 
247,  which  was  expressly  affirmed  in  Brand  v.  Hammersmith  Ry. 
Co.,  Law  Rep.  4  H.  L.  171,  it  is  clear  that  when  a  railway  company 
is  authorized  by  their  Act  of  Parliament  to  run  engines  on  their  line, 
and  that  cannot  be  done  without  their  emitting  sparks,  the  com- 
pany are  not  responsible  for  injuries  arising  therefrom,  unless  there  is 
some  evidence  of  negligence  on  their  part.  That  being  so,  I  agree 
that  if  they  have  the  land  at  the  edge  of  the  line  in  their  own  occupa- 
tion tiiey  ought  to  take  all  reasonable  care  that  nothing  is  suffered  to 
remain  there  which  would  increase  the  danger.  Then  comes  the  ques- 
tion, is  there  evidence  enough  in  this  case  of  a  want  of  that  reasonable 
care?  It  can  hardly  be  negligent  not  to  provide  against  that  which  no 
one  would  anticipate.  I  have  no  doubt  that  if  the  company  strewed 
any  thing  very  inflammable,  such  as,  to  put  an  extreme  case,  petroleum 
along  the  side  of  their  line,  they  would  he  guilty  of  negligence.  The 
reasoning  for  the  plaintiff  is  that  the  dry  trimmings  were  of  an  inflam- 
mable character  and  likely  to  catch  fire.  My  doubt  is,  whether,  since 
the  trimmings  were  on  the  verge  of  the  railway  on  the  company's  land, 
if  the  quickset  hedge  had  been  in  its  ordinary  state,  they  might  not 
have  burned  only  on  the  company's  premises,  and  done  no  further  harm, 
and  whether  the  injury,  therefore,  was  not  really  caused  by  the  hedge 
being  dry,  so  that  it  caught  fire,  and  by  the  fire  thus  spreading  to  the 
stubble-field,  and  thence  to  the  plaintiff's  cottage.  I  think  it  is  clear 
that  when  the  company  were  planning  the  railway  they  could  not  ex- 
pect that  the  hedge  would  become  so  dr\",  and  therefore  were  not  neg- 
ligent in  putting  a  hedge  instead  ot  a  stone  wall;  and  though  the 
drought  had  lasted  some  weeks,  I  can  hardly  think  it  was  negligent  in 
them  not  to  remove  the  hedge.  I  do  not  say  that  there  is  not  much  in 
what  is  said  with  respect  to  the  trimmings  being  the  cause  of  the  injury, 
and  not  the  state  of  the  hedge,  but  I  doubt  on  this  point,  and,  therefore 
doubt  if  there  was  evidence  of  negligence;  if  the  negligence  were  once 
established,  it  would  be  no  answer  that  it  did  much  more  damage  than 


98       SMITH   V.   LONDON   &    .SOUTHWESTERN  RAILWAY   CO.       [cHAP.  III. 

was  expected.  If  a  man  fires  a  gun  across  a  road  where  he  may  reason- 
ably anticipate  that  persons  will  he  passing,  and  hits  some  one,  he  is 
guilty  of  negligence,  and  liable  for  the  injury  he  has  caused;  but  if  he 
fires  in  his  own  wood,  where  he  cannot  reasonably  anticipate  that  any 
.:»ne  will  be,  he  is  not  liable  to  any  one  whom  he  shoots,  which  shows 
that  what  a  person  may  reasonably  anticipate  is  important  in  consid- 
ering whether  he  has  been  negligent;  but  if  a  person  fires  across  a 
road  when  it  is  dangerous  to  do  so  and  kills  a  man  who  is  in  receipt 
of  a  large  income,  he  will  be  liable  for  the  whole  damage,  however 
great,  that  may  have  resulted  to  his  family,  and  cannot  set  up  that  he 
could  not  have  reasonably  expected  to  have  injured  any  one  but  a 
labourer. 

PiGOTT,  B.  I  am  of  the  same  opinion.  I  had  some  doubts  at  first, 
but  in  the  result  I  am  of  the  same  opinion  as  is  expressed  by  Keat- 
ing, J.,  in  his  judgment  in  the  court  below.  He  says  that  he  was  pressed 
with  the  consideration  that  leaving  some  very  inflammable  sub- 
stance along  the  side  of  the  line  where  trains  were  frequently  passing 
was  some  evidence  of  negligence.  It  comes  to  this,  that  in  a  dry 
summer,  with  a  knowledge  of  the  risk  of  fire  which  must  be  caused, 
the  defendants  left  heaps  of  combustible  matter  along  the  side  of  their 
line;  then  whether  the  fire  did  arise  from  those  heaps  was  a  question 
for  the  jury,  and  it  seems  clear  that  it  either  came  from,  or  was  at  any 
rate  increased  by,  the  heaps,  and  so  got  through  the  fence  to  the  field, 
and  when  once  in  the  field  there  was  no  way  to  stop  it  till  it  burned 
the  plaintiff's  cottage,  and  this,  as  it  seems  to  me,  was  nothing  but  what 
a  reasonable  man  might  have  anticipated. 

Lush,  J.  I  am  also  of  opinion  that  there  was  evidence  from  which 
a  jury  might  properly  conclude  that  the  fire  originated  from  the  sparks 
falling  from  the  engine,  and  that  the  heaps  added  to  its  intensity,  and 
thus  caused  it  to  liurn  the  hedge  and  stubble;  and  I  confess  it  seems 
to  me  that  the  more  likely  the  hedge  was  to  take  fire,  the  more  in- 
cumbent it  was  upon  the  company  to  take  care  that  no  inflammable 
material  remained  near  to  it.^ 

•  Judgment  affirmed. 

1  See  Louisville  N.  A.  &  C.  Ry.  v.  Nitsche,  120  Ind.  229,  2G  N.  E.  5L—  Ed. 


SECT.    I.J      SCHEFFER   \\    A\ASHIXGTON   CITY,    ETC.,    K.    K.    CO.  99 


SCHEFFER   v.  WASHINGTON   CITY,  VIRGINIA    MIDLAND 
AND   GREAT  SOUTHERN  RAILROAD   CO. 

Supreme  Court  of  the  United  States,  188L 
[Reported  105  U.  S.  249.] 

Miller,  J.  The  plaintiffs,  executors  of  Charles  Scheffer,  deceased, 
brought  this  action  to  recover  of  the  Washington  City,  Virginia 
Midland,  and  Great  Southern  Railroad  Company  damages  for  his 
death,  which  they  allege  resulted  from  the  negligence  of  the  company 
while  carrying  him  on  its  road.  The  defendant's  demurrer  to  their 
declaration  was  sustained,  and  to  reverse  the  judgment  rendered 
thereon  they  sued  out  this  writ  of  error. 

The  statute  of  Virginia,  under  which  the  action  was  brought,  is,  as 
to  the  question  raised  on  the  demurrer,  identical  with  those  of  all  the 
other  States,  giving  the  right  of  recovery  when  the  death  is  caused 
by  such  default  or  neglect  as  would  have  entitled  the  J)arty  injured 
to  recover  damages  if  death  had  not  ensued. 

The  declaration,  after  alleging  the  carelessnes  of  the  officers  of  the 
company,  by  which  a  collision  occurred  between  the  train  on  which 
Scheffer  was  and  another  train,  on  the  seventh  day  of  December, 
1874,  proceeds  as  follows: 

"Whereby  said  sleeping-car  was  rent,  broken,  torn,  and  shattered, 
and  by  means  whereof  the  said  Charles  Scheffer  was  cut,  bruisetl, 
maimed,  and  disfigured,  wounded,  lamed,  and  injured  about  his  head, 
face,  neck,  back,  and  spine,  and  by  reason  whereof  the  said  Charles 
Scheffer  became  and  was  sick,  sore,  lame,  and  disordered  in  mind  and 
body,  and  in  his  brain  and  spine,  and  by  means  whereof  phantasms, 
illusions,  and  forebodings  of  unendurable  evils  to  come  upon  him,  the 
said  Charles  Scheffer,  were  produced  and  caused  upon  the  brain  and 
mind  of  him,  the  said  Charles  Scheffer,  which  disease,  so  produced 
as  aforesaid,  baffled  all  medical  skill,  and  continued  constantly  to  dis- 
turb, harass,  annoy,  and  prostrate  the  nervous  system  of  him,  the  said 
Charles  Scheffer,  to  wit,  from  the  seventh  day  of  December,  A.I). 
1874,  to  the  eighth  day  of  August,  1875,  when  said  phantasms,  illu- 
sions, and  forebodings,  produced  as  aforesaid,  overcame  and  prostrated 
all  his  reasoning  powers,  and  induced  him,  the  said  Charles  ScheftVr, 
to  take  his  life  in  an  effort  to  avoid  said  phantasms,  illusions,  and 
forebodings,  which  he  then  and  there  did,  whereby  and  by  means  of 
the  careless,  unskillful,  and  negligent  acts  of  the  said  defendant  afore- 
said, the  said  Charles  Scheffer,  to  wit,  on  the  eighth  day  of  August, 


100  SCHEFFER   I'.    WASHINGTON   CITY,    ETC.,    R.    R.    CO.    [CHAP.    III. 

1875,   lost    his    life   and    died,    leaving    him    surviving    a   wife   and 
children." 

The  Circuit  Court  sustained  the  demurrer  on  the  ground  that  the 
death  of,  Scheffer  was  not  due  to  the  negligence  of  the  company  in  the 
judicial  sense  which  made  it  liable  under  the  statute.  That  the  rela- 
tion of  such  negligence  was  too  remote  as  a  cause  of  the  death  to  justify 
recovery,  the  proximate  cause  being  the  suicide  of  the  decedent  — 
his  death  by  his  own  immediate  act. 

In  this  opinion  we  concur. 

Two  cases  are  cited  by  counsel,  decided  in  this  court,  on  the  sub- 
ject of  the  remote  and  proximate  causes  of  acts  where  tlie  liability  of 
the  party  sued  depends  on  whether  the  act  is  held  to  be  the  one  or  the 
other;  and,  though  relied  on  by  plaintiffs  we  think  they  both  sustain 
the  judgment  of  the  Circuit  Court. 

The  first  of  these  is  Insurance  Company  v.  Tweed,  7  Wall.  44. 

In  that  case  a  policy  of  fire  insurance  contained  the  usual  clause  of 
exception  from  liability  for  any  loss  which  might  occur  "  by  means  of 
any  invasion,  insurrection,  riot,  or  civil  commotion,  or  any  military 
or  usurped  power,  explosion,  earthquake,  or  hurricane." 

An  explosion  took  place  in  the  Marshall  warehouse,  which  threw 
down  the  walls  of  the  Alabama  warehouse  —  the  one  insured,  sit- 
uated across  the  street  from  Marshall  warehouse  —  and  by  this  means, 
and  by  the  sparks  from  the  Eagle  Mill,  also  fired  by  the  explosion 
facilitated  by  the*  direction  of  the  \\'ind,  the  Alabama  warehouse  was 
burned.  This  court  held  that  the  explosion  was  the  proximate  cause 
of  the  loss  of  the  Alabama  warehouse,  l)ecause  the  fire  extended  at 
once  from  the  Marshall  warehouse,  where  the  explosion  occurred. 
The  court  said  that  no  new  or  intervening  cause  occurred  between  the 
explosion  and  the  burning  of  the  Alabama  warehouse.  That  if  a  new 
force  or  power  had  intervened,  sufl[icient  of  itself  to  stand  as  the  cause 
of  the  misfortvme,  the  other  must  be  considered  as  too  remote. 

This  case  went  to  the  verge  of  the  sound  doctrine  in  holding  the 
explosion  to  be  the  proximate  cause  of  the  loss  of  the  Alabama  ware- 
house; but  it  rested  on  the  ground  that  no  other  proximate  cause  was 
found. 

In  Milwaukee  &  St.  Paul  Railway  Co.  v.  Kellogg  (94  U.  S.  469), 
the  sparks  from  a  steam  ferryboat  had,  through  the  negligence  of  its 
owner,  the  defendant,  set  fire  to  an  elevator.  The  sparks  from  the 
elevator  had  set  fire  to  the  plaintiff's  saw  mill  and  lumber  yard,  which 
were  from  three  to  four  hundred  feet  from  the  elevator.  The  court 
was  requested  to  charge  the  jury  that  the  injury  sustained  by  the  plain- 
tiff was  too  remote  from  the  negligence  to  aft'ord  a  groimd  for  a  recovery. 

Instead  of  this,  the  court  submitted  to  the  jury  to  find  "whether 
the  burning  of  the  mill  and  lumber  was  the  result  naturally  and  rea- 
sonably to  be  expected  from  the  burning  of  the  elevator;  whether  it 
was  a  result  which  under  the  circumstances  would  not  naturally  follow 


SECT.    I.]         SCHEFFER    V.    AVASHIXGTf)X    CITY,    ETC.,    R.    R.    CO.  101 

from  the  burning  of  the  elevator,  and  whether  it  was  the  result  of  the 
continued  effect  of  the  sparks  from  the  steamboat,  without  the  aid  of 
other  causes  not  reasonal)ly  to  be  expected." 

This  court  affirmed  the  ruling,  and  in  commenting  on  the  difficulty 
of  ascertaining,  in  each  case,  the  line  between  the  proximate  and  the 
remote  causes  of  a  wrong  for  which  a  remedy  is  sought,  said :  "  It  is 
admitted  that  the  rule  is  difficult.  But  it  is  generally  held  that,  in 
order  to  warrant  a  finding  that  negligence  or  an  act  not  amounting  to 
wanton  WTong  is  the  proximate  cause  of  an  injury,  it  must  appear  that 
the  injury  was  the  natural  and  probable  consequence  of  the  negli- 
gence or  wTongful  act,  and  that  it  ought  to  have  been  foreseen  in  the 
light  of  the  attending  circumstances."  To  the  same  effect  is  the  lan- 
guage of  the  court  in  McDonald  v.  Snelling,  14  Allen  (Mass.),  290. 

Bringing  the  case  before  us  to  the  test  of  these  principles,  it  presents 
no  difficulty.  The  proximate  cause  of  the  death  of  Scheffer  was  his 
own  act  of  self-destruction.  It  was  within  the  rule  in  both  these  cases 
a  new  cause,  and  a  sufficient  cause  of  death. 

The  argument  is  not  sound  which  seeks  to  trace  this  immediate 
cause  of  the  death  through  the  pre\'ious  stages  of  mental  aberration, 
physical  suffering,  and  eight  months'  disease  and  medical  treatment 
to  the  original  accident  on  the  railroad.  Such  a  course  of  possible  or 
even  logical  argument  would  lead  back  to  that  "  great  first  cause  least 
understood,"  in  which  the  train  of  all  causation  ends. 

The  suicide  of  Scheffer  was  not  a  result  naturally  and  reasonably  to 
be  expected  from  the  injury  received  on  the  train.  It  was  not  the 
natural  and  probable  consequence,  and  could  not  have  been  foreseen 
in  the  light  of  the  circumstances  attending  the  negligence  of  the 
officers  in  charge  of  the  train. 

His  insanity,  as  a  cause  of  his  final  destruction,  was  as  little  the. 
natural  or  probable  result  of  the  negligence  of  the  railway  officials  as 
his  suicide,  and  each  of  these  are  casual  or  unexpected  causes,  inter- 
vening between  the  act  which  injured  him  and  his  death. ^ 

Judgment  affirmed. 

1  See  BrowTi  v.  American  S.  &  W.  Co.,  4.3  Ind.  App.  .560,  88  N.  E.  80;  Daniels  v. 
New  York,  N.  H.,  &  H.  R.  R.,  183  Mass.  393,  67  X.  E.  424;  Malone  v.  Cayzer,  45 
Scot.  L.  R.  351,  Smith  Cas.  Torts,  46.  —  Ed. 


102  REGINA    V.    HOLLAND.  [CHAP.    III. 


REGINA  V.  HOLLAND. 
Liverpool  Assizes.     1841. 

[Reported  2  Mvodij  jV  Robinson,  351.] 

Indictment  for  murder.  The  prisoner  was  charged  with  inflicting 
divers  mortal  blows  and  wounds  upon  one  Thomas  Garland,  and  (among 
others)  a  cut  upon  one  of  his  fingers. 

It  appeared  by  the  evidence  that  the  deceased  had  been  waylaid  and 
assaulted  by  the  prisoner,  and  that,  among  other  wounds,  he  was 
severely  cut  across  one  of  his  fingers  by  an  iron  instrument.  On  being 
brought  to  the  infirmary,  the  surgeon  urged  him  to  submit  to  the  ampu- 
tation of  the  finger,  telling  him,  unless  it  were  amputated,  he  considered 
that  his  life  would  be  in  great  hazard.  The  deceased  refused  to  allow 
the  finger  to  be  amputated.  It  was  thereupon  dressed  by  the  surgeon, 
and  the  deceased  attended  at  the  infirmary  from  daj-  to  day  to  have  his 
wounds  dressed  ;  at  the  end  of  a  fortnight,  however,  lock-jaw^  came  on, 
induced  b}-  the  wound  on  the  finger ;  the  finger  was  then  amputated, 
but  too  late,  and  the  lock-jaw  ultimately  caused  death.  The  sui-geon 
deposed  that  if  the  finger  had  been  amputated  in  the  first  instance,  lie 
•thought  it  most  probable  that  the  life  of  the  deceased  would  have  been 
preserved. 

For  the  prisoner,  it  was  contended  that  the  cause  of  death  was 
not  the  wound  inflicted  by  the  prisoner,  but  the  obstinate  refusal  of  the 
deceased  to  submit  to  proper  surgical  treatment,  by  which  the  fatal 
result  would,  according  to  the  evidence,  have  been  prevented. 

Maule.  J.,  however,  w-as  clearly  of  opinion  that  tiiis  was  no  defence, 
and  told  the  jury  that  if  the  prisoner  wilfully,  and  witliout  any  justifi- 
able cause,  inflicted  the  wotmd  on  the  party,  whicli  Avound  was  ulti- 
inatelv  the  cause  of  death,  the  prisoner  was  guiltv  of  niurder  :  tliat  for 
this  purpose  it  made  no  difference  whether  the  wound  was  in  its  own 
nature  instantly  mortal,  or  whether  it  became  the  cause  of  death  by 
reason  of  tiie  deceased  not  having  adopted  tlie  best  mode  of  treatment ; 
the  real  question  is  whether  in  the  end  the  wound  inflicted  by  the  pris- 
oner was  the  cause  of  death.  Guilty,  i 

^  Ace.  Com.  V.  Hackett,  2  All.  136.  — Ed. 


SECT.   II.]  GUILLE  V.   SW.^N.  103 


SECTION  II. 

Intervening  Force  caused  by  First  Force. 


GUILLE  V.  SWAN. 
Supreme  Court,  New  York,  1822. 

[Reported  19  Johns.  381.] 

In  error,  on  certiorari  to  the  Justices'  Court  in  the  City  of  New 
York.  Swan  sued  Guille  in  the  Justice's  Court,  in  an  action  of  tres- 
pass, for  entering  his  close,  and  treading  down  his  roots  and  vege- 
tables, &c.,  in  a  garden  in  the  City  of  New  York.  The  facts  were,  that 
Guille  ascended  in  a  balloon  in  the  vicinity  of  Swan's  garden,  and 
descended  into  his  garden.  \Vlien  he  descended,  his  body  was  hanging 
out  of  the  car  of  the  balloon  in  a  very  perilous  situation,  and  he  called 
to  a  person  at  work  in  Swan's  field  to  help  him,  in  a  voice  audible  to 
the  pursuing  crowd.  After  the  balloon  descended,  it  dragged  along 
over  potatoes  and  radishes,  about  thirty  feet,  when  Guille  was  taken 
out.  The  balloon  was  carried  to  a  barn  at  the  farther  end  of  the 
premises.  When  the  balloon  descended,  more  than  two  hundred  per- 
sons broke  into  Swan's  garden  through  the  fences,  and  came  on  his 
premises,  beating  down  his  vegetables  and  flowers.  The  damage 
done  by  Guille,  with  his  balloon,  was  about  fifteen  dollars,  but  the 
crowd  did  much  more.  The  plaintiff's  damages,  in  all,  amounted  to 
$90.  It  was  contended  before  the  justice,  that  Guille  was  answer- 
able only  for  the  damage  done  by  himself,  and  not  for  the  damage  done 
by  the  crowd.  The  justice  was  of  the  opinion,  and  so  instructed  the 
jury,  that  the  defendant  was  answerable  for  all  the  damages  done  to 
the  plaintiff.  The  jury,  accordingly,  found  a  verdict  for  him,  for  S90, 
on  which  the  judgment  was  given,  anfl  for  costs. 

The  cause  was  submitted  to  the  court  on  the  return,  with  the  briefs 
of  the  counsel,  stating  the  points  and  authorities. 

Spencer,  C.  J.^  .  .  .  I  will  not  say  that  ascending  in  a  balloon  is 

'-  Tart  of  the  opinion  is  omitted.  —  Ed. 


104  '  REX    I',    DE   MARNY.  [CHAP.    III. 

an  unlawful  act,  for  it  is  not  so;  but  it  is  certain  that  the  aeronaut 
has  no  control  over  its  motion  horizontally;  he  is  at  the  ,sport  of  the 
winds,  and  is  to  descend  when  and  how  he  can;  his  reaching  the  earth 
is  a  matter  of  hazard.  He  did  descend  on  the  premises  of  the  plaintiff 
below,  at  a  short  distance  from  the  place  where  he  ascended.  Now,  if 
his  descent,  imder  such  circumstances,  would,  ordinarily  and  naturally, 
draw  a  crowd  of  people  about  him,  either  from  curiosity,  or  for  the 
purpose  of  rescuing  him  from  a  perilous  situation;  all  this  he  ought  to 
have  foreseen,  and  must  be  responsible  for.  Whether  the  crowd  heard 
him  call  for  help  or  not,  is  immaterial;  he  had  put  himself  in  a  situa- 
tion to  invite  help,  and  they  rushed  forward,  impelled,  perhaps,  by 
the  double  motive  of  rendering  aid  and  gratif^dng  a  curiosity  which 
he  had  excited.  Can  it  be  doubted,  that  if  the  plaintiff  in  error  had 
beckoned  to  the  crowd  to  come  to  his  assistance,  that  he  would  l^e 
liable  for  their  trespass  in  entering  the  inclosure?  I  think  not.  In 
that  case,  they  would  have  been  co-tresspassers,  and  we  must  consider 
the  situation  in  which  he  placed  himself,  voluntarily  and  designedly, 
as  equivalent  to  a  direct  request  to  the  crowd  to  follow  him.  In  the 
present  case,  he  did  call  for  help,  and  may  have  been  heard  by  the 
crowd;  he  is,  therefore,  undoubtedly,  liable  for  all  the  injury  sustained. 

Judgment  affirmed. 


REX   V.    DE   MARNY. 

Court  for  Crowx  Cases  Reserved.     1906. 

[Reported  1907,  1  K.  B.  .388.] 

Case  stated  for  the  opinion  of  the  Court  for  the  Consideration  of 
Crown  Cases  Reserved  by  the  Common  Serjeant. 

The  defendant  was  tried  at  the  Central  Crimhial  Court  on  an  indict- 
ment charging  him  in  several  counts  with  selUng  and  publishing,  and 
causing  and  procuring  to  be  sold  and  published  by  certain  named 
persons,  divers  obscene  books,  papers,  and  photographs.  The  indict-, 
ment  also  contained  a  series  of  counts  charging  him  with  sending,  and 
causing  and  procuring  to  be  sent  by  certain  named  persons,  certain 
postal  packets  containing  obscene  books,  papers,  and  photographs  con- 
trary to  the  Post  Office  (Protection)  Act,  1884  (47  &  48  Vict.  c. 
76),  s.  4. 

It  was  proved  that  the  defendant  was  the  editor  of  a  newspaper 
called  Judy.,  and  that  he  inserted  and  published  in  that  newspaper  ad- 
vertisements of  several  persons  in  Enghuid  anl  abi-oad,  oftVring  for 
sale   books,    catalogues,    and   photographs.      The  chief   inspector  of 


SECT.    II.]  '  REX    l\    DE   MARNY.  105 

police  wrote  to  the  addresses  given  in  the  advertisements  and  received 
in  return  from  the  persons  or  firms  mentioned  in  the  indictment,  wlio 
were  all  resident  abroad,  postal  packets  containing  books,  catalogues, 
and  photographs  of  the  most  obscene  character.  The  defendant  had 
been  warned  several  times  by  the  police  authorities  that  the  books, 
photographs,  and  other  things  advertised  in  his  paper  in  the  same 
terms  and  b}'  the  same  persons  were  of  an  obscene  character,  and  that 
one  of  the  persons  so  advertising  in  his  newspaper  had  been  convicted 
for  selling  and  publishing  obscene  libels.  Counsel  for  the  defendant 
submitted  that  there  was  no  evidence  to  go  to  the  jury  that  the  defend- 
ant took  part  in  or  aided  and  abetted  the-  selling  and  publishing  of 
obsceue  libels  as  charged  in  the  indictment. 

The  Common  Serjeant  held  that  there  was  evidence,  and  directed  the 
jur\'  that  if  they  were  satisfied  that  the  books  and  photographs  sent  to 
the  police  inspector  in  pursuance  of  the  advertisements  were  obscene, 
and  that  the  defendant  knew  at  the  time  he  published  the  advertise- 
ments that  they  were  advertisements  for  the  sale  of  obscene  literature 
and  photographs,  and  that  by  the  publication  of  these  advertisements 
he  brought  about  the  sale  and  transmission  to  the  inspector  of  the 
books  and  photographs,  they  ought  to  convict  the  defendant,  although 
he  did  not  know  the  actual  contents  of  the  books  or  the  details  of  the 
photographs  sent,  and  that  in  judging  of  the  defendant's  knowledge 
the3'  might  consider  not  only  the  evidence  of  the  express  warnings 
given  to  the  defendant  and  the  wording  of  each  advertisement,  but  also 
the  other  advertisements  appearing  in  the  same  issue  of  the  paper. 

The  jury  found  the  defendant  guilty  on  all  counts. 

The  question  for  the  opinion  of  the  Court  was  whether  the  conviction 
was  right  on  all  or  an}'  of  the  counts  of  the  indictment. 

Avory,  K.  C'.,  and  J.  P.  Grain,  for  the  defendant.  The  conviction 
cannot  stand.  If  the  defendant  is  guilt}-^  he  is  guilt\-  of  aiding  and 
abetting  the  sale  and  publication  of  tiie  indecent  literature,  and,  the 
offence  being  a  misdemeanour,  he  is  liable  to  be  indicted  as  a  principal 
in  the  second  degree;  but  the  real  vendors,  who  are  the  principals  in 
the  first  degree,  are  all  foreigners  resident  abroad,  and  they  committed 
no  offence  against  the  English  law  in  sending  indecent  literature  to  this 
countr}'.  If  the  act  done  b}'  the  principal  in  the  first  degree  is  one 
for  which  he  could  not  be  convicted,  it  follows  that  the  principal  in 
the  second  degree  has  been  guilt}'  of  no  offence.  Further,  by  publish- 
ing the  advertisements  the  defendant  cannot  be  said  to  have  procured 
in  the  legal  sense  the  publication  of  the  books  sold,  an}'  more  than  a 
sandwicli-man  who  advertises  the  performance  of  a  stage  play  in 
a  music-hall  commits  the  offence  of  procuring  the  illegal  representation 
of  a  stage  play.  Reliance  is  placed  by  the  prosecution  on  the  fact  that 
the  defendant  knew  that  the  advertisements  related  to  obscene  matter, 
but  that  knowledge  is  not  evidence  that  he  aided  and  abetted  or  pro- 
cured the  sale  of  the  particular  things  specified  -in  the  indictment.     In 


106  REX   V.    DE   MARNY.  [CHAP.    III. 

Other  words,  the  insertion  of  the  advertisements,  though  it  may  have 
assisted  tlie  sale  in  a  commercial  sense,  is  legally  too  remote  from  the 
commission  of  the  oft'ence  to  constitute  the  editor  of  the  newspaper  an 
aider  or  abettor  in  the  offence. 

li.  D.   M)iir  and   X.    W.   Kershmi',  for  the  prosecution.     It  is  a 
fallacy  to  say  that  the  principals  in  the  first  degree  in  this  case  have 
committed  no  offence.     The  person  abroad,  whether  a  foreigner  or  not, 
who  through  his  innocent   agent,  the  postman,  causes  the  publication 
of  indecent  literature  in  this  country  commits  an  offence  against  the 
law  of  England,  and,  if  he  came  within  the  jurisdiction,  could  be  con- 
victed :  Rex  V.  Oliphant,  [1905]  2  K.  B.  67.     The  act  of  sending  the 
books  and    photographs  through  the  post  is  one  continuous  act,  one 
portion  of  which  is  performed  by  the  foreigner  'abroad  and  another  b}' 
the  postman  in  England,  but  the  act  of  sending  continues  right  up  to 
the  moment  of  delivery.     In  Rex  v.  Burdett,  (1820)  1  St.  Tr.  (N.  S.) 
1,  at  pp.  114,  115;  4  B.  «&;  Aid.  95,  where  a  libel  was  written  by  the 
defendant  in  one  county  and  delivered  b}'   the   postal  authorities  in 
another,  it  was  held  that  there  was  a  publication  by  the  defendant 
in  the  latter  county  ;  and  at  the  date  of  that  decision  the  same  question 
arose  as  between  different  counties  as  now  arises  between  England  and 
a  foreign  country.     Then,  is   there  any  evidence  that   the  defendant 
aided  and  abetted  or  procured  the  sale  or  publication  within  s.  8  of  the 
Aiders  and  Abettors  Act.  1861  (24  &  25  Vict.  c.  94)  ?     The  foreigner 
abroad  desires  to  get  customers  in  England.     He  can  do  so  either  by 
employing  an  agent  or  by  advertising.     In  either  case  the  effect  is  the 
same.    The  advertisement  in  the  present  case  atforded  that  aid  without 
which    the  vendor  could   not   have  committed    the  illegal  act.      The 
defendant  knew  that  the  advertisements  related  to  indecent  literature, 
and  that  sales  would  or  might  result  from  their  insertion  in  his  paper. 
It  is  immaterial  that  he  may  not  have  known  the  exact  books  or  photo- 
graphs that  would  be  sold  :  Reg.  ik  Cooper,  (1846)  8  Q.  B.  533  ;  Parkes  v. 
Prescott,  (1869)  L.  R.  4  Ex.  169. 
[He  was  stopped.] 
Aoory,  K.  C,    replied. 

LoKD  Alverstone,  C.  J.  The  very  able  arguments  which  have  been 
delivered  on  both  sides  enable  me  to  come  without  any  doubt  to  the 
conclusion  that  this  conviction  must  be  affirmed.  The  defendant  for 
profit  to  himself  inserted  in  his  paper  advertisements  which  give  infor- 
mation to  readers  as  to  where  certain  publications  can  be  obtained,  and 
it  is  found  as  a  fact  that  the  defendant  knew  that  the  books  and  other 
tiiinofs  advertised  were  of  an  indecent  character,  and  if  one  were  at 
liberty  to  draw  a  conclusion  from  the  advertisements  themselves,  there 
could  be  no  doubt  at  all  as  to  that.  The  Common  Serjeant  directed 
the  jury  in  the  following  terras:  [His  Lordship  read  the  direction  of 
the  Common  Serjeant  set  out  above,  and  continued  :  — ]   In  my  opinion 


SECT.    II.]  REX   V.    DE   MARNY.  107 

that  direction  is  stated  as  favourabh*  as  it  could  be  for  the  defendant. 
The  jury  are  told  that  in  order  to  convict  the  defendant  they  must  be 
satisfied  that  the  defendant  knew  the  character  of  the  publications  re- 
ferred to  in  the  advertisements,  and  that  by  publishing  the  advertise- 
ments he  brougiit  about  the  sale  of  the  publications  and  other  articles 
referred  to.  That  amounts  in  ordinary-  language  to  aiding  or  abetting 
the  publication  in  England  of  ol)scene  literature,  and  the  sending 
through  the  post  in  England  a  packet  the  sending  of  which  is  pro- 
hibited by  the  Post  Office  (Protection)  Act,  1884.  It  would,  in  my 
opinion,  be  a  lamentable  state  of  things  if  the  law  of  this  country  were 
not  strong  enough  to  deal  with  a  man  who  has  done  so  much  towards 
bringing  about  the  publication  of  indecent  literature.  The  evidence  in 
this  case  shews  that  the  result  of  the  insertion  of  the  advertisements 
in  the  defendant's  paper  was  to  give  information  as  to  where  these 
things  could  be  obtained  to  persons  who,  but  for  the  advertisements, 
would  or  might  never  have  known  of  their  existence,  and,  therefore,  it 
is  not  going  too  far  to  say  that  the  publication  was  directly  brought 
about  bv  the  act  of  the  defendant,  and  it  is  further  proved  that  the 
defendant  had  knowledge  that  that  would  be  the  consequence  of  insert- 
ing the  advertisements  in  the  paper.  The  argument  which  has  been 
urged  on  behalf  of  the  defendant  seems  to  me  to  go  too  far,  because  it 
would  equally  apply  if  the  defendant  had  himself  caused  the  books 
to  be  printed  abroad.  In  my  opinion  the  direction  of  the  Common 
Serjeant  was  in  accordance  with  the  law,  and  the  cases  of  Rex  ?\ 
Oliphant,  supra,  Rex  v.  Burdett,  sicpra,  and  Reg.  v.  Cooper,  supra, 
are  all  authorities  which  afford  illustration  of  the  same  principle,  that 
in  misdemeanours  persons  who,  in  the  words  of  the  statute,  "•  aid,  abet, 
counsel  or  procure  "  the  commission  of  an  offence  are  themselves  prin- 
cipal offenders. 

Grantham  J.  I  am  of  the  same  opinion.  I  doubted  at  first  whether 
the  law  was  strong  enough  to  make  the  person  who  received  money 
for  publishing  these  advertisements  liable  in  the  same  way  as  a  person 
who  himself  sells  indecent  literature,  but  the  authorities  which  have 
been  cited  to  us  by  Mr.  Muir  satisfj'  me  tiiat  the  learned  Common 
Serjeant  rightly  directed  the  jur}-.  The  conviction  must  therefore  be 
affirmed. 

Lawrance,  Bigham  and  Bucknill,  JJ.,  concurred. 

Conviction  affirmed. 


108  JONES    I".    BOYCE.  [CEL\P.    III. 

JONES  V.   BOYCE. 

Assizes,   1816. 
[Reported  1  Stark.  493.] 

This  was  an  action  on  the  case  against  the  defendant,  a  coach  pro- 
prietor, for  so  negHgently  conducting  the  coach,  that  the  plaintiff,  an 
outside  passenger,  was  obliged  to  jump  off  the  coach,  in  consequence 
of  which  his  leg  was  broken. 

It  appeared  that  soon  after  the  coach  had  set  off  from  an  inn,  the 
coupling  rein  broke,  and,  one  of  the  leaders  being  ungovernable,  whilst 
the  coach  was  on  a  descent,  the  coachman  drew  the  coach  to  one  side 
of  the  road,  where  it  came  in  contact  with  some  piles,  one  of  which 
it  broke,  and  afterwards  the  wheel  was  stopped  by  a  post.  E^•idence 
was  adduced  to  shew  that  the  coupling  rein  was  defective,  and  that 
the  breaking  of  the  rein  had  rendered  it  necessary  for  the  coachman 
to  drive  to  the  side  of  the  road  in  order  to  stop  the  career  of  the  horses. 
Some  of  the  witnesses  stated  that  the  wheel  was  forced  against  the 
post  with  great  violence;  and  one  of  the  watnesses  stated,  that  at  that 
time  the  plaintiff,  who  had  before  been  seated  on  the  back  part  of  the 
coach,  was  jerked  forwards  in  consequence  of  the  concussion,  and  that 
one  of  the  wheels  was  elevated  to  the  height  of  eighteen  or  twenty 
inches;  but  whether  the  plaintiff  jumped  off,  or  was  jerked  off,  he 
could  not  say.  A  witness  also  said,  I  should  have  jumped  down  had 
I  been  in  his  (the  plaintiff's)  place,  as  the  best  means  of  avoiding 
the  danger.  The  coach  was  not  overturned,  but  the  plaintiff  was 
immediately  afterwards  seen  hnng  on  the  road  with  his  leg  broken, 
the  bone  haxang  been  protruded  through  the  boot. 

Upon  this  e\adence.  Lord  Ellenborough  was  of  opinion,  that  there 
was  a  case  to  go  to  the  jury,  and  a  considerable  mass  of  evidence  was 
then  adduced,  tending  to  shew  that  there  was  no  necessity  for  the 
plaintiff  to  jump  off. 

Lord  Ellenborough,  in  his  address  to  the  jury,  said:  This  case 
presents  two  questions  for  your  consideration;  first,  whether  the 
proprietor  of  the  coach  was  guilty  of  any  default  in  omitting  to  pro- 
vide the  safe  and  proper  means  of  conveyance,  and  if  you  should  be 
of  that  opinion,  the  second  question  for  your  consideration  will  be, 
whether  that  default  was  conducive  to  the  injury  which  the  plaintiff 
has  sustained;  for  if  it  was  not  so  far  conducive  as  to  create  such  a 
reasonable  degree  of  alarm  and  apprehension  in  the  mind  of  the  plain- 
tiff, as  rendered  it  necessary  for  him  to  jump  down  from  the  coach  in 
order  to  avoid  immediate  danger,  the  action  is  not  maintainable. 
To  enable  the  plaintiff  to  sustain  the  action,  it  is  not  necessary  that 
he  should  have  been  thrown  off  the  coach ;  it  is  sufficient  if  he  was  placed 


SECT.  II.]  JONES  V.    BOYCE.  109 

by  the  misconduct  of  the  defendant  in  such  a  situation  as  obHged 
him  to  adopt  the  alternative  of  a  dangerous  leap,  or  to  remain  at  cer 
tain  peril;  if  that  position  was  occasioned  by  the  default  of  the  de- 
fendant, the  action  may  be  supported.  On  the  other  hand,  if  the 
plaintiff's  act  resulted  from  a  rash  apprehension  of  danger,  which  did 
not  exist,  and  the  injury  which  he  sustained  is  to  be  attributed  to  rash- 
ness and  imprudence,  he  is  not  entitled  to  re«over.  The  question  is 
whether  he  was  placed  in  such  a  situation  as  to  render  what  he  did  a 
prudent  precaution,  for  the  purpose  of  self-preservation. —  His  Lord- 
ship, after  recapitulating  the  facts,  and  commenting  upon  them, 
and  particularly  on  the  circumstance  of  the  rein  being  defective,  added : 
—  If  the  defect  in  the  rein  was  not  the  constituent  cause  of  the  injury, 
the  plaintiff  will  not  be  entitled  to  your  verdict.  Therefore  it  is  for 
your  consideration,  whether  the  plaintiff's  act  was  the  measure  of  an 
unreasonably  alarmed  mind,  or  such  as  a  reasonable  and  prudent  mind 
would  have  adopted.  If  I  place  a  man  in  such  a  situation  that  he  must 
adopt  a  perilous  alternative,  I  am  responsible  for  the  consequences; 
if,  therefore,  you  should  be  of  opinion,  that  the  reins  were  defecti^'e, 
did  this  circumstance  create  a  necessity  for  what  he  did,  and  did  he  use 
proper  caution  and  prudence  in  extricating  himself  from  the  apparently 
impending  peril.  If  you  are  of  that  opinion,  then,  since  the  original 
fault  was  in  the  proprietor,  he  is  liable  to  the  plaintiff  for  the  injury 
which  his  misconduct  has  occasioned.  This  is  the  first  case  of  the 
kind  which  I  recollect  to  have  occurred.  A  coach  proprietor  certainly 
is  not  to  be  responsible  for  the  rashness  and  imprudence  of  a  passenger; 
it  must  appear  that  there  existed  a  reasonable  cause  for  alarm. 
The  jury  found  a  verdict  for  the  plaintiif . —  Damages  300/.^ 

1  See  also  Yongue  v.  St.  Louis  &  S.  F.  R.  R.,  133  Mo.  App.  141,  112  S.  W.  985; 
St.  Joseph  &  G.  I.  R.  R.  V.  Hedge,  44  Neb.  448,  62  N.  W.  887;  Quigley  v.  Delaware 
&  H.  C.  Co.,  142  Pa.  3aS,  21  Atl.  827.—  Ed. 


110  '       SCOTT   V.    SHEPHERD.  [cHAP.    III. 


SCOTT  V.   SHEPHERD. 
Common  Pleas,   1773. 

[Reported  2   Wm.  Bl.  892.] 

Trespass  and  assault  for  throwing,  casting,  and  tossing  a  lighted 
squib  at  and  against  the  plaintiff,  and  striking  him  therewith  on  the 
face,  and  so  burning  one  of  his  eyes,  that  he  lost  the  sight  of  it,  whereby, 
&c.  On  not  guilty  pleaded,  the  cause  came  on  to  be  tried  before  Nares, 
J.,  last  summer  assizes,  at  Bridgewater,  when  the  jury  found  a  verdict 
for  the  plaintiff  with  100/.  damages,  subject  to  the  opinion  of  the 
court  on  this  case :  —  On  the  evening  of  the  fair-day  at  Milborne  Port 
28th  October,  1770,  the  defendant  threw  a  lighted  squib,  made  of 
gun  powder,  &c.,  from  the  street  into  the  market-house,  which  is  a 
covered  building,  supported  by  arches,  and  inclosed  at  one  end,  but 
open  at  the  other  and  both  the  sides,  where  a  large  concourse  of  people 
were  assembled ;  which  lighted  squib,  so  thrown  by  the  defendant,  fell 
upon  the  standing  of  one  Yates,  who  sold  gingerbread,  &c.  That  one 
Willis  instantly,  and  to  prevent  injury  to  himself  and  the  said  wares  of 
the  said  Yates,  took  up  the  said  lighted  squib  from  off  the  said  standing, 
and  then  threw  it  across  the  said  market-house,  when  it  fell  upon 
another  standing  there  of  one  Ryal,  who  sold  the  same  sort  of  wares, 
who  instantly,  and  to  save  his  own  goods  from  being  injured,  took  up 
the  said  lighted  squib  from  off  the  said  standing,  and  then  threw 
it  to  another  part  of  the  said  market-house,  and,  in  so  throwing  it, 
struck  the  plaintiff  then  in  the  said  market-house  in  the  face  there- 
with, and  the  combustible  matter  then  bursting,  put  out  one  of  the 
plaintiff's  eyes.     Qu.     If  this  action  be  maintainable? 

This  case  was  argued  last  term  by  Glyn,  for  the  plaintiff,  and  Burland 
for  the  defendant:  and  this  term,  the  court,  being  di\'ided  in  their 
judgment,  delivered  their  opinions  seriatim. 

Nares,  J.,  was  of  the  opinion,  that  trespass  would  well  lie  in  the 
present  case.  That  the  natural  and  probable  consequence  of  the  act 
done  by  the  defendant  was  injury  to  somebody,  and  therefore  the 
act  was  illegal  at  common  law.  And  the  throwing  of  squibs  has  by 
statute  W.  3,  been  since  made  a  nuisance.  Being  therefore  un- 
lawful, the  defendant  was  liable  to  answer  for  the  consequences,  be  the 
injury   mrdiafe  or   ijinnrdiafi'.     21    Hen.   7,   28,  is  express  that  malus 


SECT.    II.]  SCOTT    V.    SHEPHERD.  Ill 

animus  is  not  necessary  to  constitute  a  trespass.  So,  too,  1  Stra. 
596;  Hob.  134;  T.  Jones,  205;  6  Edw.  4,  7,  8;  Fitzh.  Trespass, 
110.  The  principle  I  go  upon  is  what  is  laid  down  in  Reynolds  and 
Clark,  Stra.  634,  that  if  the  act  in  the  first  instance  be  unlawful, 
trespass  will  lie.  Wherever  therefore  an  act  is  unlawful  at  first,  tres- 
pass wall  lie  for  the  consequences  of  it.  So,  in  12  Hen.  4,  trespass  lay 
for  stopping  a  sewer  with  earth,  so  as  to  overflow  the  plaintiff's  land. 
In  26  Hen.  8,  8  for  going  upon  the  plaintiff's  land  to  take  the  boughs 
off  which  had  fallen  thereon  in  lopping.  See  also  Hardr.  60;  Reg. 
108,  95;  6  Edw.  4,  7,  8;  1  Ld.  Raym.  272;  Hob.  180;  Cro.  Jac. 
122,  43;  F.  X.  D.  202,  [91,  g].  I  do  not  think  it  necessary,  to  main- 
tain trespass,  that  the  defendant  should  personally  touch  the  plaintiff; 
if  he  does  it  by  a  mean  it  is  sufficient.  —  Qui  facit  per  aliud  facit  jwr  se. 
He  is  the  person,  who,  in  the  present  case,  gave  the  mischievous 
faculty  to  the  squib.  That  mischievous  faculty  remained  in  it  till  the 
explosion.  No  new  power  of  doing  mischief  was  communicated  to  it 
by  Willis  or  Ryal.  It  is  like  the  case  of  a  mad  ox  turned  loose  in  a 
crowd.  The  person  who  turns  him  loose  is  answerable  in  trespass 
for  whatever  mischief  he  may  do.  The  intermediate  acts  of  Willis 
and  Ryal  will  not  purge  the  original  tort  in  the  defendant.  But  he 
who  does  the  first  WTong  is  answerable  for  all  the  consequential  dam- 
ages. So  held  in  the  King  and  Huggins,  2  Lord  Raym.  1574; 
Parkhurst  and  Foster,  1  Lord  Raym.  480;  Rosewell  and  Prior,  12  Mod. 
639.  And  it  was  declared  by  this  court,  in  Slater  and  Baker,  M.  8 
Geo.  3,  2  Wils.  359,  that  they  would  not  look  with  eagle's  eyes  to  see 
whether  the  evidence  applies  exactly  or  not  to  the  case:  but  if  the 
plaintiff  has  obtained  a  verdict  for  such  damages  as  he  deserves,  they 
will  establish  it  if  possible. 

Blackstone,  J.,  was  of  opinion,  that  an  action  of  trespass  did  not 
lie  for  Scott  against  Shepherd  upon  this  case.  He  took  the  settled  dis- 
tinction to  be,  that  where  the  injury  is  immediate,  an  action  of  trespass 
will  lie;  where  it  is  only  consequential,  it  must  be  an  action  on  the  case: 
Reynolds  and  Clarke,  Lord  Raym.  1401,  Stra.  634;  Haward  and  Bankes, 
Burr.  1114;  Harker  and  Birkl)eck,  Burr.  1559.  The  lawfulness  or 
unlawfulness  of  the  original  act  is  not  the  criterion;  though  something 
of  that  sort  is  put  into  Lord  Raymond's  mouth  in  Stra.  635,  where  it 
can  only  mean,  that  if  the  act  then  in  question,  of  erecting  a  spout, 
had  been  in  itself  unlawful,  trespass  might  have  lain;  but  as  it  was  a 
lawful  act,  (upon  the  defendant's  own  ground),  and  the  injury  to  the 
plaintiff  only  consequential,  it  must  be  an  action  on  the  case. 
But  this  cannot  be  the  general  rule;  for  it  is  held  l)y  the  court  in  the 
same  case,  that  if  I  throw  a  log  of  timber  into  the  highway,  (which 
is  an  unlawful  act),  and  another  man  tumbles  over  it,  and  is  hurt,  an 
action  on  the  case  only  lies,  it  being  a  consequential  damage;  but  if 
in  throwing  it  I  hit  another  man,  he  may  bring  trespass,  because  it  is 
an  immediate  wrong.    Trespass  may  sometimes  lie  for  the  consequences 


112  SCOTT    l\    SHEPHERD.  [cHAP.    III. 

of  a  lawful  act.  If  in  lopping  my  own  trees  a  bough  'accidentally  falls 
on  my  neighbor's  ground,  and  I  go  thereon  to  fetch  it,  trespass  lies. 
This  is  the  case  cited  from  6  Edw.  4,  7.  But  then  the  entry  is  of  itself 
an  immediate  wrong.  And  case  will  sometimes  lie  for  the  consequence 
of  an  unlawful  act.  If  by  false  imprisonment  I  have  a  special  damage, 
as  if  I  forfeit  my  recognizance  thereby,  I  shall  have  an  action  on  the 
case;  per  Powel,  J.,  11  Mod.  180.  Yet  here  the  original  act  was  un- 
lawful, and  in  the  nature  of  trespass.  So  that  laA\'ful  or  unlawful  is 
quite  out  of  the  case;  and  the  solid  distinction  is  between  direct  or 
immediate  injuries  on  the  one  hand,  and  mediate  or  consequential 
on  the  other.  And  trespass  never  lay  for  the  latter.  If  this  be  so,  the 
only  question  will  be,  whether  the  injury  which  the  plaintiff  suffered 
was  immediate,  or  consequential  only;  and  I  hold  it  to  be  the 
latter.  The  original  act  was,  as  against  Yates,  a  trespass;  not  as 
against  Ryal,  or  Scott.  The  tortious  act  was  complete  when  the 
squib  lay  at  rest  upon  Yates's  stall.  He,  or  any  bystander,  had,  I 
allow,  a  right  to  protect  themselves  by  removing  the  squib,  but  should 
have  taken  care  to  do  it  in  such  a  manner  as  not  to  endamage  others. 
But  Shepherd,  I  think,  is  not  answerable  in  an  action  of  trespass  and 
assault  for  the  mischief  done  by  the  squib  in  the  new  motion  im- 
pressed upon  it,  and  the  new  direction  given  it,  by  either  Willis  or 
Ryal;  who  both  were  free  agents,  and  acted  upon  their  own  judgment. 
This  differs  it  from  the  cases  put  of  turning  loose  a  wild  beast  or  a  mad- 
man. They  are  only  instruments  in  the  hand  of  the  first  agent.  Nor 
is  it  like  diverting  the  course  of  an  enraged  ox,  or  of  a  stone  thrown, 
or  an  arrow  glancing  against  a  tree;  because  there  the  original  motion, 
the  ri'.s  impressa,  is  continued,  though  diverted.  Here  the  instrument  of 
mischief  was  at  rest,  till  a  new  impetus  and  a  new  direction  are  given  it, 
not  once  only,  but  by  two  successive  rational  agents.  But  it  is  said 
that  the  act  is  not  complete,  nor  the  squib  at  rest,  till  after  it  is  spent 
or  exploded.  It  certainly  has  a  power  of  doing  fresh  mischief,  and 
so  has  a  stQne  that  has  been  thrown  against  my  windows,  and  now 
lies  still.  Yet  if  any  person  gives  that  stone  a  new  motion,  and  does 
farther  mischief  with  it,  trespass  will  not  lie  for  that  against  the  original 
thrower.  No  doubt  but  Yates  may  maintain  trespass  against  Shepherd. 
And,  according  to  the  doctrine  contended  for,  so  may  Ryal  and  Scott. 
Three  actions  for  one  single  act!  nay,  it  may  be  extended  in  infinitum. 
If  a  man  tosses  a  football  into  the  street,  and,  after  being  kicked  about 
by  one  hundred  people,  it  at  last  breaks  a  tradesman's  windows;  shall 
he  have  trespass  against  the  man  who  first  produced  it?  Surely  only 
against  the  man  who  gave  it  that  michievous  direction.  But  it  is 
said,  if  Scott  has  no  action  against  Shepherd,  against  whom  must  he 
seek  his  remedy?  I  give  no  opinion  whether  case  would  lie  against 
Shepherd  for  the  consequential  damage;  though,  as  at  present  advised, 
I  think,  upon  the  circumstances,  it  would.  But  I  think,  in  strictness 
of  law,  trespass  would  lie  against  Ryal,  the  immediate  actor  in  this  un- 


SECT.    II.]  SCOTT   T.    SHEPHERD.  113 

happy  business.     Both  he  and  WilHs  have  exceeded  the  bounds  of 
self-defense,  and  not  used  sufficient  circumspection  in  renio\ang  the 
danger  from  themselves.     The  throwing  it  across  the  market-house, 
instead    of    brushing    it    down,    or    throwing    [it]    out    of    the    open 
sides  into  the  street,  (if  it  was  not  meant  to  continue  the  sport,  as  it 
is  called),  was  at  least  an  unnecessary  and  incautious  act.     Not  even 
menaces  from  others  are  sufficient  to  justify  a  trespass  against  a  third 
person ;  much  less  a  fear  of  danger  to  either  his  goods  or  his  person ;  — 
nothing  but  ine^'itable  necessity;  Weaver  and  Ward,  Hob.  134;  Dick- 
enson and  Watson,  T.  Jones,  205;  Gilbert  and  Stone,  Al.  35,  Styl. 
72.    So  in  the  case  put  by  Brian,  J.,  and  assented  to  by  Littleton  and 
Choke,  G.  J.,  and  rehed  on  in  Raym.  467,' — "If  a  man  assaults  me, 
so  that  I  cannot  a^oid  him,  and  I  lift  up  my  staff  to  defend  myself,  and, 
in  lifting  it  up,  undesignedly  hit  another  who  is  behind  me,  an  action 
lies  ]jy  that  person  against  me;  and  yet  I  did  a  lawful  act  in  endeavour- 
ing to  defend  myself."    But  none  of  these  great  lawyers  ever  thought 
that  trespass  would  lie,  by  the  person  struck,  against  him  who  first 
assaulted  the  striker.       The  cases  cited  from  the  Register  and  Hardres 
are  all  of  immediate  acts,  or  the  direct  and  inevitable  effects  of  the  de- 
fendants' immediate  acts.    And  I  admit  that  the  defendant  is  answer- 
able in  trespass  for  all  the  direct  and  inevitable  effects  caused  by  his 
own  immediate  act.  —  But  what  is  his  own  immediate  act?    The  throw- 
ing the  squib  to  Yates's  stall.     Had  Yates's  goods  been  burnt,  or  his 
person  injured.  Shepherd  must  have  been  responsible  in  trespass.    But 
he  is  not  responsible  for  the  acts  of  other  men.    The  subsequent  throw- 
ing across  the  market-house  by  Willis,  is  neither  the  act  of  Shepherd, 
nor  the  inevitaVjle  effect  of  it;  much  less  the  subsequent  throwing  by 
Ryal.    Slater  and  Barker  was  first  a  motion  for  a  new  trial  after  verdict. 
In  our  case  the  verdict  is  .suspended  till  the  determination  of  the  court. 
And  though  after  verdict  the  court  will  not  look  with  eagle's  eyes 
to  spy  out  a  variance,  yet,  when  a  question  is  put  by  the  jury  upon  such 
a  variance,  and  it  is  made  the  very  point  of  the  cause,  the  court  will 
not  wink  against  the  light,  and  say  that  evidence,  which  at  most  is 
only  applicable  to  an  action  on  the  case,  will  maintain  an  action  of  tres- 
pass.   2.  It  was  an  action  on  the  case  that  was  brought,  and  the  court 
held  the  special  case  laid  to  be  fully  proved.    So  that  the  present  ques- 
tion could  not  arise  upon  that  action.    3.  The  same  evidence  that  will 
maintain  trespass,  may  also  frequently  maintain  case,  but  not  e  converso. 
Every  action  of  trespass  with  a  per  quod  includes  an  action  on  the 
case.     I  may  bring  trespass  for  the  immediate  injury,  and  subjoin  a 
per  quod  for  the  consequential  damages;  —  or  may  bring  case  for  the 
consequential  damages,  and  pass  over  the  immediate  injury,  as  in 
the  case  from  11  Mod.  180,  before  cited.    But  if  I  bring  trespass  for  an 
imfnediate  injury,  and  prove  at  most  only  a  consequential  damage, 
judgment  must  be  for  the  defendant;  Gates  and  Bailey,  Tr.  6  Geo.  3, 
(2  Wils.  313).    It  is  said  l)y  Lord  Raymond,  and  very  justly,  in  Rey- 


114  SCOTT    r.    SHEPHERD.  [chap.    III. 

nolds  and  Clarke,  "We  must  keep  up  the  boundaries  of  actions, 
otherwise  we  shall  introduce  the  utmost  confusion. "  As  I  therefore 
think  no  immediate  injury  passed  from  the  defendant  to  the  plaintiff, 
(and  without  such  immediate  injury  no  action  of  trespass  can  be 
maintained),  I  am  of  opinion,  that  in  this  action  judgment  ought  to  be 
for  the  defendant. 

Gould,  J.,  was  of  the  same  opinion  with  Nares,  J.,  that  this  action 
was  well  maintainable.  —  The  whole  difficulty  lies  in  the  form  of  the 
action,  and  not  in  the  substance  of  the  remedy.  The  line  is  very 
nice  between  case  and  trespass  upon  these  occasions:  I  am  persuaded 
there  are  many  instances  wherein  both  or  either  will  lie.  I  agree 
\\'ith  Brother  Nares,  that  wherever  a  man  does  an  unlawful  act,  he  is 
answerable  for  all  the  consequences;  and  trespass  will  lie  against  him, 
if  the  consequence  be  in  nature  of  trespass.  But,  exclusive  of  this,  I 
think  the  defendant  may  be  considered  in  the  same  ^^ew  as  if  he  him- 
self had  personally  thrown  the  squib  in  the  plaintiff's  face.  The  terror 
impressed  upon  Willis  and  Ryal  excited  self-defense,  and  deprived  them 
of  the  power  of  recollection.  What  they  did  was  therefore  the  inevi- 
table consequence  of  the  defendant's  unlawful  act.  Had  the  squib 
been  thrown  into  a  coach  full  of  company,  the  person  throwing  it  out 
again  would  not  have  been  answerable  for  the  consequences.  What 
Willis  and  Ryal  cUd,  was  by  necessity,  and  the  defendant  imposed 
that  necessity  upon  them.  As  to  the  case  of  the  football,  I  think  that 
if  all  the  people  assembled  act  in  concert,  they  are  all  trespassers; 
1.  from  the  general  mischievous  intent;  2.  from  the  ob\dous  and  natural 
consequences  of  such  an  act:  which  reasoning  will  equally  apply  to  the 
case  before  us.  And  that  actions  of  trespass  will  lie  for  the  mischievous 
consequences  of  another's  act,  whether  lawful  or  vmlawful,  appears 
from  their  being  maintained  for  acts  done  in  the  plaintiff's  own  land: 
Hardr.  60;  Courtney  and  Collet,  1  Lord  Raym.  272.  I  shall  not  go 
over  again  the  ground  which  Brother  Nares  has  relied  on  and  explained, 
but  concur  in  his  opinion,  that  this  action  is  supported  by  the  e\'idence. 

De  Grey,  C.  J.  This  case  is  one  of  those  wherein  the  line  drawn 
by  the  law  between  actions  on  the  case  and  actions  of  trespass  is  very 
nice  and  delicate.  Trespass  is  an  injury  accompanied  with' force,  for 
which  an  action  of  trespass  vi  et  armis  lies  against  the  person  from  whom 
it  is  received.  The  question  here  is,  whether  the  injury  received  by  the 
plaintiff  arises  from  the  force  of  the  original  act  of  the  defendant,  or 
from  a  new  force  by  a  third  person.  I  agree  with  my  Brother 
Blackstone  as  to  the  principles  he  has  laid  down,  but  not  in  his 
application  of  those  principles  to  the  present  case.  The  real  question 
certainly  does  not  turn  upon  the  lawfulness  or  unlawfulness  of  the 
original  act;  for  actions  of  trespass  ^^^ll  lie  for  legal  acts  when  they 
become  trespasses  by  accident;  as  in  the  cases  cited  of  cutting  thorns, 
lopping  of  a  tree,  shooting  at  a  mark,  defending  oneself  by  a  stick 
which  strikes  another  behind,  &c.  — Thev  mav  also  not  lie  for  the  con- 


SECT.   II. J  SCOTT    I".    SHEPHERD.  llo 

sequences  even  of  illegal  acts,  as  that  of  casting  a  log  in  the  highway, 
&c. —  But  the  true  question  is,  whether  the  injury  is  the  direct  and  im- 
mediate act  of  the  defendant;  and  I  am  of  opinion,  that  in  this  case 
it  is.  The  throwdng  the  squib  was  an  act  unlawful  and  tending  to 
affright  the  bystanders.  So  far,  mischief  was  originally  intended;  not 
any  particular  mischief,  but  mischief  indiscriminate  and  wanton. 
Whatever  mischief  therefore  follows,  he  is  the  author  of  it ;  —  Egreditur 
personam,  as  the  phrase  is  in  criminal  cases.  And  though  criminal 
cases  are  no  rule  for  ci\'il  ones,  yet  in  trespass  I  tlaink  there  is  an  analogy. 
Everyone  who  does  an  unlawful  act  is  considered  as  the  doer  of  all  that 
follows;  if  done  Math  a  deliberate  intent,  the  consequence  may  amount 
to  murder;  if  incautiously,  to  manslaughter;  Fost.  261.  So  too,  in  1 
Ventr.  295,  a  person  breaking  a  horse  in  Lincoln's  Inn  Fields  hurt  a 
man;  held,  that  trespass  lay;  and  2  Lev.  172,  that  it  need  not  be  laid 
scienter.  I  look  upon  all  that  was  done  subsequent  to  the  original 
throwing  as  a  continuation  of  the  first  force  and  first  act,  which  will 
continue  till  the  squib  was  spent  by  bursting.  And  I  think  that  any 
innocent  person  remoAang  the  danger  from  himself  to  another  is  justi- 
fiable; the  blame  lights  upon  the  first  thrower.  The  new  direction 
and  new  force  flow  out  of  the  first  force,  and  are  not  a  new  trespass. 
The  writ  in  the  Register,  95a,  for  trespass  in  maliciously  cutting  dovnv 
a  head  of  water,  which  thereupon  flowed  down  to  and  overwhelmed 
another's  pond,  shoM^s  that  the  immediate  act  need  not  be  instanta- 
neous, but  that  a  chain  of  effects  together  \\\\\  be  sufficient.  It  has 
been  urged,  that  the  intervention  of  a  free  agent  will  make  a  difference: 
but  I  do  not  consider  Willis  and  Ryal  as  free  agents  in  the  present  case, 
but  acting  under  a  compulsive  necessit^k^'  for  their  own  safety  and  self- 
preservation.  On  these  reasons  I  concur  vdih.  Brothers  Gould  and 
Nares  that  the  present  action  is  maintainable. 

Postea  to  the  plaintiff. 


116  ILLINOIS   CENTRAL   RAILROAD    CO.    V.    SILER.      [CHAP.    III. 


ILLINOIS  CENTRAL  RAILROAD  CO.   v.   SILER. 
Supreme  Court  of  Illinois,  1907. 

[Reported  229  ///.  390.] 

Dunn,  J.  delivered  the  opinion  of  the  court: 

Appellant  presents  two  propositions  only:  First,  the  declaration 
does  not  state  a  cause  of  action;  second,  there  is  no  proof  that  ap- 
pellant set  out  the  fire  or  that  the  deceased  used  due  care. 

The  declaration  consisted  of  five  counts,  the  second  and  fifth  of 
which  were  substantially  alike,  and  alleged  that  defendant  negli- 
gently suffered  large  quantities  of  combustible  material  to  accumu- 
late upon  its  right  of  way;  that  fire  from  one  of  defendant's  engines 
ignited  said  combustible  material  and  thence  spread  and  was  commu- 
nicated to  the  decedent's  premises,  and  while  decedent,  with  all  due  care 
and  caution  for  her  own  personal  safety,  was  endeavoring  to  suppress 
said  fire  and  protect  her  dwelling  house  on  said  premises,  whose  de- 
struction was  threatened,  her  clothing  was  ignited  by  said  fire,  in  conse- 
quence whereof  she  was  burned  and  died.  The  third  and  fourth 
counts  allege  that  fire  escaped  from  one  of  defendant's  locomotives 
by  defendant's  mere  neglect  and  set  fire  to  certain  combustible  material 
on  its  right  of  way  and  decedent's  adjoining  close,  and  while  decedent, 
with  all  due  care  for  her  personal  safety,  was  endeavoring  to  extinguish 
the  fire  and  protect  her  dwelling  house,  which  was  threatened  with 
destruction,  her  clothing  was  ignited  and  she  was  burned,  and  in 
consequence  thereof  died. 

It  is  claimed  that  the  second  and  fifth  counts  are  statutory  and 
therefore  bad,  because  the  statute  in  reference  to  the  accumulation  of 
dangerous  combustible  material  upon  the  right  of  way  of  a  railroad 
company  (3  Starr  &  Cur.  Stat.  par.  69,  p.  3263)  refers  back  to  the  pre- 
ceding section  for  its  penalty,  and  applies  only  to  stock  and  not  to  per- 
sons. But  these  counts  do  not  refer  to  the  statute  and  do  not  depend 
upon  it  for  their  validity.  Before  the  statute,  while  the  presence  of  dry 
grass  and  weeds  upon  the  right  of  way  of  a  railroad  company  was 
not  conclusive  evidence  of  negligence,  yet  the  question  of  negligence 
was  one  of  fact,  to  be  determined  hy  the  jury  from  all  the  circum- 
stances in  the  case.     Illinois  Central  Railroad  Co.  v.  Mills,  42  111.  407. 

It  is  insisted  that  all  the  counts  are  bad,  because  they  show,  specifi- 


SECT.    II.]        ILLINOIS   CENTRAL   RAILROAD    CO.    V.    SILER.  117 

^ 

cally,  that  the  injury  to  decedent  was  not  the  proximate  result  of  the 
negligence  charged. 

What  is  the  proximate  cause  of  an  injury  is  ordinarily  a  question  of 
fact,  to  be  determined  by  the  jury  from  a  consideration  of  all  the  at- 
tending circumstances.  (Fent  v.  Toledo,  Peoria  and  Warsaw  Railway 
Co.,  59  111.  349;  Pullman  Palace  Car  Co.  v.  Laack,  143  id.  242;  West 
Chicago  Street  Railroad  Co.  v.  Feldstein,  169  id.  139.)  It  can  only 
arise  as  a  question  of  law  or  pleading  when  the  facts  are  not  only 
undisputed,  but  are  also  such  that  there  can  be  no  difference,  in  the 
judgment  of  reasonable  men,  as  to  the  inferences  to  be  drawn  from 
them.  The  counts  all  allege,  substantially,  that  the  fire  was  com- 
municated to  the  decedent's  premises  by  the  negligence  of  appellant. 
They  all  allege,  substantially,  that  while  the  deceased,  with  all  due  care 
for  her  safety,  was  trying  to  extinguish  the  fire,  her  clothing  was  ig- 
nited and  her  burning  and  death  resulted.  The  question  presented,  so 
far  as  the  demurrer  is  concerned,  is  whether  one  who  has  negligently 
set  fire  to  another's  premises  can  be  held  liable  for  damages  caused  by 
burning  the  owner  while  engaged  in  tr^dng,  with  reasonable  prudence 
and  care,  to  extinguish  such  fire. 

Even  though  one's  property  has  been  negligently  set  on  fire  by  an- 
other, the  owner  cannot  permit  it  to  be  consumed  without  an  effort 
to  save  it  and  then  claim  reimbursement  from  the  setter  out  of  the 
fire.  He  must  use  every  reasonable  effort,  consistent  with  his  personal 
safety,  to  preserve  the  property.  (Toledo,  Peoria  and  Warsaw  Rail- 
way Co.  V.  Pindar,  53  III.  447;  Chicago  and  Alton  Railroad  Co.  v. 
Pennell,  94  id.  448.)  Where  a  person  sees  his  property  exposed  to 
imminent  danger  through  the  negligence  of  another,  he  is  justified 
in  using  every  effort  to  save  it  wliich  a  reasonably  prudent  person  would 
use  under  similar  circumstances,  even  though  the  effort  exposes  him 
to  some  danger  which  he  would  otherwise  have  avoided.  Due  care 
depends  upon  the  circumstances  suiTounding  the  action.  It  is  to  be 
determined  with  reference  to  the  situation  in  which  he  finds  himself  at 
the  time.  What  is  due  care  in  one  situation  might  be  gross  recklessness 
under  different  circumstances.  Everyone  is  bound  to  anticipate  the 
results  naturally  folloA\ang  from  his  acts.  The  appellant  was  there- 
fore bound  to  anticipate,  when  the  fire  started,  that  the  decedent 
would  try  to  put  it  out.  .  This  she  was  doing,  and  the  allegation  is 
that  she  was  using  all  due  care  and  caution  for  her  own  personal 
safety.  If  in  so  doing  the  fire  which  appellant  had  negligently  set  out 
spread  to  and  ignited  her  clothing  wathout  any  want  on  her  part  of 
the  care  which  an  ordinarily  prudent  person  would  exercise  under  the 
circumstances,  the  appellant  should  be  held  to  have  anticipated  such 
result  as  probable  and  to  be  liable  therefor. 

In  order  to  make  a  negligent  act  the  proximate  cause  of  an  injury  it 
is  not  necessary  that  the  particular  injury,  and  the  particular  manner 
of  its  occurrence,  could  reasonably  have  been  foreseen.    (City  of  Dixon 


118  ILLINOIS   CENTRAL    KAILROAD    CO.    i'.    SILER.      [ciIAP.    III. 

V.  Scott,  181  TU.  116.)  If  the  consequences  follow  in  unbroken  sequence 
from  the  wrong  to  the  injury  without  an  intervening  efficient  cause,  it 
is  sufficient  if,  at  the  time  of  the  negHgence,  the  wrongdoer  might,  by 
the  exercise  of  ordinary  care,  ha\-e  foreseen  that  some  injury  might 
result  from  his  neghgence.  Chicago  and  Alton  Railroad  Co.  i'.  Pennell, 
supra;  Pullman  Palace  Car  Co.  r.  Laack,  supra;  Chicago  Hair  and 
Jh-istle  Co.  /•.  Nueller,  203  111.  558. 

The  rule  as  to  what  constitutes  proximate  cause  was  considered 
in  the  case  of  Atchison,  Topeka  and  Santa  Fe  Railroad  Co.  v.  Stan- 
ford, 12  Kan.  354,  and  it  was  said:  "Any  number  of  causes  and  effects 
may  intervene  between  the  first  wrongfid  cause  and  the  final  injurious 
consequence,  and,  if  they  are  such  as  might  with  reasonable  diligence 
have  been  foreseen,  the  last  result,  as  well  as  the  first  and  every  in- 
termediate result,  is  to  be  considered,  in  law,  as  the  proximate  result 
of  the  first  wrong  cause.  But  whenever  a  new  cause  intervenes  which 
is  not  a  consequence  of  the  first  wrongful  cause,  which  is  not  under  the 
control  of  the  wrongdoer,  which  could  not  have  been  foreseen  by  the 
exercise  of  reasonable  diligence  by  the  WTongdoer  and  except  for  which 
the  final  injurious  consequences  could  not  have  happened,  then  such 
injurious  consequences  must  be  deemed  too  remote  to  constitute  the 
basis  of  the  cause  of  action." 

In  Milwaukee  and  St.  Paul  Railway  Co.  v.  Kellogg,  94  U.  S.  469,  it 
is  said:  "The  question  always  is,  was  there  an  unbroken  connection 
between  the  wrongful  act  and  the  injury, — •  a  continuous  operation? 
Did  the  facts  constitute  a  continuous  succession  of  events,  so  linked 
together  as  to  make  a  natural  whole,  or  was  there  some  new  and  in- 
dependent cause  intervening  between  the  wrong  and  the  injury?  .  .  . 
The  inquiry  must,  therefore,  always  be  whether  there  was  any  inter- 
mediate cause,  disconnected  from  the  primary  fault  and  self -operating, 
which  produced  the  injury." 

It  is  true  that  in  this  case  the  voluntary  act  of  the  decedent  inter- 
vened between  the  negligent  act  of  tlie  appellant  in  setting  out  the 
fire  and  the  injury  occasioned  by  the  burning  of  decedent.  But  this 
act  was  one  of  the  intervening  causes  which  the  appellant  with  rea- 
sonable diligence  might  ha\'e  foreseen.  It  was  a  consequence  of  the 
wrongful  act  of  appellant  which  it  ought  to  have  anticipated.  It  was 
not  a  new  and  indep>endent  cause  intervening  between  the  wrong  and 
the  injury  or  disconnected  from  the  primary  cause  and  self-operating, 
but  was  itself  the  natural  result  of  appellant's  original  negligence. 

The  case  of  Scale  r.  Railway  Co.,  65  Texas,  274,  has  been  cited  by 
appellant  and  fully  sustains  its  position.  That  case  holds,  that,  whether 
the  deceased  was  negligent  or  not  in  her  attempt  to  put  out  the  fire, 
it  was  this  attempt,  and  not  the  original  negligence  of  the  defendant  in 
starting  the  flame,  that  was  the  proximate  cause  of  her  death.  This 
case  was  followed  by  the  Missouri  Court  of  Appeals  in  Logan  v.  Wabash 
Railroad  Co.,  70  S.  W.  Rep.  734.     In  the  case  of  Chattanooga  Light 


SECT.    II.]        ILLIXOIS   CEXTRAL    RAILRO.U)    CO.    V.    SILER.  119 

and  Power  Co.  v.  Hodges,  109  Tenn.  331,  the  injury  resulted  from  "an 
act  committed  by  the  injured  party  so  obviously  fraught  with  peril 
as  should  })e  sufficient  to  deter  one  of  reasonable  intelligence."  The 
court,  wliile  reversing  the  judgment  against  the  defendant,  said: 
"The  rule  has  been  extended  so  as  to  give  the  injured  party  redress 
where  his  effort  to  save  property  has  been  such  as  a  reasonably  pru- 
dent man  would  have  made  under  similar  circumstances." 

The  cases  which  sustain  the  position  of  the  appellant  we  think  are 
wrong  in  principle  and  opposed  to  the  weight  of  authority.  One  whose 
property  is  exposed  to  danger  by  another's  negligence  is  bound  to 
make  such  effort  as  an  ordinarily  prudent  person  would  to  save  it  or 
prevent  damages  to  it.  If  in  so  doing,  and  while  exercising  such  care 
for  his  safety  as  is  reasonable  and  prudent  under  the  circumstances, 
he  is  injured  as  a  result  of  the  negligence  against  the  effect  of  which  he 
is  seeking  to  protect  his  property,  the  wTongdoer  whose  negligence 
is  the  occasion  of  the  injury  must  respond  for  the  damages.  It  is  not 
just  that  the  loss  should  fall  on  the  innocent  \'ictim.  We  regard 
this  as  the  result  of  the  authorities  which  we  have  been  able  to  examine, 
aside  from  the  two  above  mentioned  as  sustaining  the  position  of  ap- 
pellant. Berg  V.  Great  Northern  Railway  Co.,  70  Minn.  272;  Liming 
V.  Illinois  Central  Railroad  Co.,  81  Iowa,  246;  Glanz  v.  Chicago,  Mil- 
waukee and  St.  Paul  Railway  Co.,  119  id.  611;  Wasmer  v.  Delaware, 
Lackawanna  and  Western  Railroad  Co.,  80  N.  Y.  212;  Page  v.  Bucks- 
port,  64  Me.  51. 

The  declaration  was  sufficient  to  support  the  judgment. 

There  was  evidence  tending  to  show  that  appellant  had  allowed  dry 
grass  and  weeds  to  accumulate  upon  its  right  of  way;  that  the  fire 
started  in  such  grass  and  weeds  and  spread  to  the  deceased's  premises 
immediately  after  the  passage  of  a  gravel  train  of  appellant;  that 
the  deceased  commenced  to  rake  the  grass  and  leaves  on  her  lot  and 
near  her  house,  and  while  doing  so  her  clothes  caught  fire;  that  the 
fire  was  started  by  the  negligence  of  appellant,  and  that  the  deceased 
exercised  ordinary  care,  under  circumstances,  for  her  own  safety. 
In  this  condition  of  the  record  the  judgment  of  the  Appellate  Court 
is  final  as  to  the  facts. 

Appellant  insists  that  if  the  deceased  was  not  guilty  of  contribu- 
tory negligence  she  was  injured  as  the  result  of  a  pure  accident. 
But  the  law  is  well  settled  in  this  State  that  a  defendant  is  liable  for 
an  injury  caused  to  one  using  due  care  for  his  personal  safety  by  the 
defendant's  negligence  concurring  with  an  accident  without  which  the 
injury  would  not  have  occurred.  City  of  Rock  Falls  v.  Wells,  169 
111.  224;  City  of  Joliet  v.  Schufeldt,  144  id.  403;  Village  of  Carterville 
».  Cook,  129  id.  152;  Armour  v.  Golkowska,  202  id.  144. 

We  find  no  en-or  in  the  record,  and  the  judgment  will  be  affirmed. 

Judgment  affirmed.^ 
»  See  also  Glanz  v.  Chicago  M.  &  S.  P.  Ry.,  1 19  la.  61 1,  93  X.  W.  .575.  —  Ed. 


120  EHRGOTT   V.   MAYOR   OF   NEW   YORK.  [CHAP.    III. 


EHRGOTT  V.   MAYOR  OF  NEW  YORK. 

Court  of  Appeals  of  New  York,  1884. 
[Reported  96  A".   Y.  264.] 

Earl,  J.  This  action  was  commenced  to  recover  damages  sus- 
tained by  the  plaintiff  from  personal  injuries  received  by  him  in  con- 
sequence of  a  defect  in  a  street  in  the  City  of  New  York.^  .  .  .  The 
accident  occurred  in  the  night  time,  while  it  was  raining.  When  the 
plaintiff  drove  into  the  ditch  in  the  street  his  horses  jumped,  the  axle 
of  his  carriage  was  broken,  and  he  was  dragged  partly  over  the  dash- 
board. With  the  assistance  of  men  who  came  to  his  help,  his  horses 
were  taken  from  the  carriage,  and  he  procured  another  carriage  and 
harnessed  his  horses  to  that,  and  drove  several  miles  to  liis  home  with 
his  \\ife,  sister,  and  son.  To  report  the  accident  to  the  police  station 
nearby,  to  change  carriages  and  drive  to  his  home,  took  several  hours, 
and  during  that  time  he  was  exposed  to  the  cold  and  rain,  and  his 
clothes  became  perfectly  saturated  with  water.  He  was  not  that 
night  aware  that  he  had  sustained  any  injury,  and  the  next  morning 
first  became  sensible  of  the  pain  in  his  back.  Upon  the  trial  the  plain- 
tiff gave  exadence  tending  to  show  that  the  diseases  from  which  he 
was  suffering  were  results  of  the  strain  and  shock,  caused  by  his  being 
dragged  over  the  dashboard;  and  the  defendant  gave  e\adence  tending 
to  show  that  the  diseases  were  the  result  of  the  subsequent  exposure 
to  the  cold  and  rain.  The  judge,  in  his  charge  to  the  jury,  left  it  to  them 
to  determine  whether  the  injuries  of  wliich  plaintiff  complained  were  the 
proximate,  direct  result  of  the  accident,  and  up)on  plaintiff's  request  he 
charged  "that  whether  his  personal  injuries  resulted  from  the  strain 
experienced  by  him  in  being  pulled  over  the  dashboard,  or  from  the 
exposure  after  the  accident,  the  defendant  is  still  responsible  for  the 
injuries  from  which  the  plaintiff  is  now  suffering,  pro\dded  that  the 
jury  shall  find  that  the  plaintiff  was  wdthout  negligence,  and  con- 
ducted himself  with  ordinary  and  reasonable  care."  To  this  charge 
defendant's  counsel  excepted.  The  judge  also  charged,  at  the  request 
of  the  defenflant,  that  "the  inquiry  is  whether  the  plaintiff's  conduct 
has  augmented  the  mischief;  if  so,  as  the  law  is  inadequate  to  appor- 
tion the  wTong,  there  can  be  no  recovery;"  that  "no  punitive  damages 
can  be  recovered  against  the  city  in  this  action ;  if  the  plaintiff  is  entitled 
to  recover  at  all,  the  jury  can  only  award  compensation  for  such 
actual  pecuniary  loss,  and  pain,  and  suffering  as  were  occasioned  by  the 
accident;"  that  "the  plaintiff'  was  bound  to  use  ordinary  prudence  to 
avoid  ill  effects  from  the  accident  as  well  before  as  after  the  accident, 
^  Part  of  the  opinion  is  omitted. —  Ed. 


SECT.    II.]  EHRGOTT   V.   MAYOR    OF   NEW   YORK.  121 

and  if  the  exposure  to  the  rain  and  wet  after  the  breakdown  occasioned 
the  present  injuries  to  the  spine,  and  such  exposure  was  not  the  con- 
duct and  action  of  a  prudent  man,  especially  in  view  of  his  ill-health, 
arising  from  his  throat,  then  the  defendant  would  not  be  responsible 
for  it;"  that  "the  defendant  is  only  liable  for  such  damages  as  are  the 
natural  and  necessary  result  of  the  accident  in  question;"  and  he 
refused  to  charge  as  a  part  of  this  request,  "  and  for  such  damages  as 
might  reasonably  be  supposed  to  have  been  in  the  contemplation  of 
plaintiff  and  defendant,  as  the  probable  result  of  the  accident,"  and  to 
this  refusal  defendant's  counsel  excepted.  He  also  charged  the  following 
request  of  the  defendant :  "  If  you  find  that  the  defendant  is  not  respon- 
sible for  the  plaintiff's  present  sufferings,  within  the  rules  which  I  have 
just  laid  down,  and  yet  find  that  the  accident  was  the  result  of  the 
defendant's  negligence,  the  plaintiff"  would  be  entitled  to  recover  for 
such  pain  and  suffering  as  the  exddence  shows  to  be  the  natural  and 
necessary  result  of  the  accident;"  and  he  refused  to  charge  the  follow- 
ing requests  of  the  defendant:  "Or  if  you  believe  that  such  spinal 
sufferings,  from  which  the  plaintiff  suffers,  arose  from  the  plaintiff's 
standing  out  in  the  cold  and  rain  for  an  hour,  or  an  hour  and  a  half, 
after  the  breakdown,  during  which  time  the  plaintiff  says  he  got  wet 
to  the  skin,  or  arose  from  his  catching  cold  by  riding  home  in  his  wet 
clothes,  and  if  you  believe  that  it  was  not  occasioned  directly  by  the 
rut  in  the  road,  but  that  it  was  the  result  of  the  plaintiff's  own  volun- 
tary exposure,  then  I  charge  you  that  the  city  would  not  be  liable 
therefor; "  that  "  if  the  plaintiff's  personal  sufferings  were  occasioned  by 
his  getting  wet  to  the  skin,  from  standing  outdoors,  and  then  dri\ang 
home  in  his  wet  clothes,  on  the  night  in  question,  then  I  charge  you 
that  the  defendant  would  not  be  liable  for  them."  To  these  refusals 
defendant's  counsel  excepted. 

The  defendant  also  requested  the  judge  to  charge  "that  the  spinal 
injuries  from  which  the  plaintiff  now  suffers,  if  they  were  occasioned 
by  the  exposure  to  the  wet,  following  the  accident,  as  the  defendant 
contends  they  were,  are  not  the  natural  and  necessary  result  of  the 
accident,  and  are  not  such  as  might  reasonably  be  supposed  to  have  been 
in  the  contemplation  of  the  parties  as  the  probable  outgrowth  of  the 
accident,  and,  therefore,  in  the  contemplation  of  the  law,  the  defend- 
ant is  not  liable  therefor."  The  judge  declined  to  charge  this,  except 
as  he  had  already  charged,  and  the  defendant's  counsel  excepted. 

The  judge  submitted  ^Titten  questions  to  the  jury,  which  they 
answered  as  follows:  First.  "Are  the  spinal  difficulties,  from  which 
the  plaintiff'  is  now  suffering,  the  direct  result  of  the  accident  —  that  is, 
the  breaking  of  the  axle,  and  his  falling  over  the  dashboard  —  or 
are  they  the  result  of  his  subsequent  exposure  to  the  wet  or  cold,  or 
both?"  Answer:  "Of  both."  Second.  "Was  it  a  reasonably  prudent 
action  for  the  plaintiff  to  remain  in  the  street,  exposed  to  the  rain  and 
cold  during  the  time  that  his  journey  was  interrupted  on  the  night 


122  EHRGOTT    V.    MAYOR   OF   NEW    YORK.  [CHAP.    III. 

of  the  accident?"  Answer:  "Yes."  Third.  "Was  it  a  reasonably- 
prudent  action  for  him  to  resume  his  journey,  and  drive  home  in  his 
wet  clothing,  when,  as  he  says  he  was,  drenched  to  the  skin?"  Ans. 
"Yes."  Fourth.  "Did  the  plaintiff's  exposure  tend  to  increase  or 
consummate  whatever  injury  lie  received  by^  the  breaking  of  the  axle 
and  in  falling  over  the  dashboard?"    Ans.  "Yes." 

It  is  sometimes  said  that  a  party  charged  with  a  tort,  or  with  breach 
of  contract,  is  liable  for  such  damages  as  may  reasonably  be  supposed 
to  have  been  in  the  contemplation  of  both  parties  at  the  time,  or  with 
such  damage  as  may  reasonably  be  expected  to  result,  under  ordinary 
circumstances,  from  the  misconduct,  or  with  such  damages  as  ought  to 
have  been  foreseen  or  expected  in  the  light  of  the  attending  circum- 
stances, or  in  the  ordinary  course  of  things.  These  various  modes  of 
stating  the  rule  are  all  apt  to  be  misleading,  and  in  most  cases  are 
absolutely  worthless  as  guides  to  the  jury.  (Leonard  v.  N.  Y.,  etc., 
Tel.  Co.,  41  N.  Y.  544.)  Parties  when  they  make  contracts,  usually 
contemplate  their  performance  and  not  their  breach,  and  the  conse- 
quences of  a  breach  are  not  usually  in  their  minds,  and  it  is  useless 
to  adopt  a  fiction  in  any  case  that  they  were.  When  a  party  commits 
a  tort  resulting  in  a  personal  injury,  he  cannot  foresee  or  contemplate 
consequences  of  his  tortious  act.  He  may  knock  a  man  down,  and  his 
stroke  may,  months  after,  end  in  paralysis  or  in  death  —  results  which 
no  one  anticipated  or  could  have  foreseen.  A  city  may  leave  a  street 
out  of  repair,  and  no  one  can  anticipate  the  possible  accidents  which 
may  happen,  or  the  injuries  which  may  be  caused.  Here  nothing  short 
of  Omniscience  could  have  foreseen  for  a  minute  what  the  result  and 
effect  of  driving  into  this  ditch  would  be.  Even  for  weeks  and  months 
after  the  accident  the  most  expert  physicians  could  not  tell  the  ex- 
tent of  the  injuries. 

The  true  rule,  broadly  stated,  is  that  a  wrongdoer  is  liable  for  the 
damages  which  he  causes  by  his  misconduct.  But  this  rule  must  be 
practicable  and  reasonable,  and  hence  it  has  its  limitations.  A  rule 
to  be  of  practicable  value  in  the  administration  of  the  law,  must  be 
reasonably  certain.  It  is  impossible  to  trace  any  wrong  to  all  its  con- 
sequences. They  may  be  connected  together  and  involved  in  an 
infinite  concatenation  of  circumstances.  As  said  by  Lord  Bacon,  in 
one  of  his  maxims  (Bac.  Max.  Reg.  1):  "It  were  infinite  for  the 
law  to  judge  the  cause  of  causes,  and  their  impidsion  one  of  another; 
therefore  it  contenteth  itself  with  tht>  immediate  cause,  and  judgeth 
of  acts  by  that,  without  looking  to  any  further  degree."  The  best 
statement  of  the  rule  is  that  a  wrongdoer  is  responsible  for  the  natural 
and  proximate  consequences  of  his  misconduct ;  and  what  are  such  con- 
sequences must  generally  be  left  for  the  determination  of  the  jury. 
(Milwaukee  &  St.  P.  R.  Co.  v.  Kellogg,  94  U.  S.  469.)  We  are,  there- 
fore, of  opinion  that  the  judge  did  not  err  in  refusing  to  charge  the 
jury  that  the  defendant  was  liable  "only  for  such  damages  as  might 


SECT.    II.]  EHRGOTT    V.    MAYOR    OF   KEW   YORK.  123 

reasonably  be  supposed  to  have  been  in  the  contemplation  of  the 
plaintiff  and  defendant  as  the  probable  result  of  the  accident." 

The  judge  charged  the  jury  that  the  defendant  was  liable  to  the 
plaintiff,  even  if  the  disease  from  which  he  suffered  were  solely  due  to 
his  exposure  to  the  cold  and  rain  after  the  accident,  provided  he  was 
free  from  fault  and  negligence  in  the  exposure.  I  am  inclined  to  think 
that  there  was  no  error  in  this  portion  of  the  charge.  The  exposure 
was  the  direct  and  proximate  result  of  the  accident.  The  plaintiff  and 
his  family  were  unavoidably  forced  from  his  carriage  into  the  rain  and 
cold  by  the  accident,  and  were  thus  exposed  to  those  elements  in  con- 
sequence of  defendant's  wrong.  It  was  in  the  night  time,  and  they 
could  not  remain  in  the  carriage,  and  he  could  not  avoid  the  rain. 
He  was  bound  to  exercise  reasonable  prudence  in  taking  care  of  him- 
self and  avoiding  the  consequences  of  the  wrong  done.  He  had  the 
option  to  stand  in  the  street  where  the  accident  had  placed  him,  or  to 
go  home,  exercising  reasonable  prudence  and  the  best  judgment  he 
had.  There  is  thus  such  a  direct  connection  between  the  accident  and 
the  exposure  as  to  make  the  defendant  liable  for  the  latter.  It  must, 
however,  be  admitted  that  there  is  considerable  authority  in  opposition 
to  these  views.  (Hobbs  v.  L.  &  S.  W.  R.  Co.,  L.  R.  10  Q.  B.  Ill; 
McMahon  v.  Field,  44  L.  T.  [N.  S.]  Ch.  Div.  175;  Waller  v.  M.  G.  W. 
Railway  Co.,  12  Ir.  L.  T.  145;  Pullman  Palace  Car  Co.  v.,  Barker,  4  Col. 
344;  Indianapolis,  etc.,  R.  Co.  v.  Birney,  71  111.  391;  Francis  v.  St.  L. 
Transfer  Co.,  5  Mo.  App.  7.)  But  the  views  expressed  are  not  con- 
demned by  any  authority  in  this  State,  and  are  fairly  sustained  by 
the  cases  of  Williams  v.  Vanderbilt  (28  N.  Y.  217)  and  Ward  v.  Vander- 
bilt  (4  Abb.  Ct.  of  App.  Dec.  521). 

But  even  if  the  portion  of  the  charge  just  referred  to  was  erroneous, 
it  was  entirely  harmless,  as  the  jury  found  that  the  diseases  from 
which  the  plaintiff  suffered  were  the  direct  result  both  of  the  accident 
(the  breaking  of  the  axle  and  his  falling  over  the  dashboard)  and  the 
subsequent  exposure,  and  that  the  effect  of  the  exposure  was  simply 
to  increase  and  aggravate  the  injury  received  from  the  accident. 
The  jury  found  that  the  plaintiff  was  blameless  for  the  subsequent 
exposure,  and,  therefore,  so  far  as  that  operated  in  causing  injury 
to  the  plaintiff,  it  was  a  cause  for  which  he  was  not  responsible.  There 
were,  according  to  the  finding  of  the  jury,  two  causes  operating  to 
produce  plaintiff's  injuries,  each  of  which  was  essential  to  produce 
the  results.  The  accident  without  the  exposure,  and  the  exposure 
without  the  accident,  would  not  have  caused  them.  This  case  then 
comes  within  the  principle  decided  in  Ring  v.  City  of  Cohoes  (77 
N.  Y.  83),  where  it  was  said:  "When  two  causes  combine  to  produce 
an  injury  to  a  traveler  upon  a  highway,  both  of  which  are  in  their  nature 
proximate  —  one  being  a  culpal)le  defect  in  the  highway,  and  the 
other  some  occurrence  for  which  neither  party  is  responsible  —  the 
municipality  is  liable,  provided  the  injury  would  not  have  been  sus- 


124  EHRGOTT   V.    MAYOR   OF   NEW   YORK.  [CIL\P.    III. 

tained  but  for  such  defect ; "  and  "  when  several  proximate  causes  con- 
tribute to  an  accident,  and  each  is  an  efficient  cause,  mthout  the  oper- 
ation of  which  the  accident  would  not  have  happened,  it  may  be 
attributed  to  all  or  any  of  the  causes;  but  it  cannot  be  attributed  to 
a  cause  unless,  without  its  operation,  the  accident  would  not  have 
happened."  Here,  as  I  understand  the  findings  of  the  jury,  the  plain- 
tiff's injuries  would  not  have  been  suffered  but  for  the  strain  and  shock 
of  the  accident.  Wliile  both  causes  were  proximate,  that  was  the  near- 
est and  most  direct.  Still  further.  It  was  certainly  impossible  for  the 
plaintiff  to  prove,  or  for  the  jury  to  find,  how  much  of  the  injury  was  due 
to  either  cause  alone.  It  was  wholly  impossible  to  apportion  the  dam- 
age between  the  two  causes.  Shall  this  difficulty  deprive  the  plaintiff 
of  all  remedy?  We  answer  no.  The  wrong  of  the  defendant  placed 
the  plaintiff  in  tliis  dilemma,  and  it  cannot  complain  if  it  is  held  for  the 
entire  damage. 

We  have  thus  examined  with  the  care  which  the  importance  of  this 
case  seems  to  demand  the  principal  questions  involved  upon  this 
appeal.  There  are  some  other  exceptions  noticed  in  the  brief  of  the 
learned  counsel  for  the  city,  but  they  are  not  of  sufficient  importance 
to  require  discussion  here.  They  do  not  seem  to  be  much  relied  on 
and  clearly  point  to  no  error. 

The  order  of  the  General  Term,  reversing  the  judgment  and  grant- 
ing a  new  trial,  should  be  reversed,  and  the  judgment  entered  upon 
the  verdict  should  be  affirmed,  with  costs  of  the  appeal  to  the  General 
Term  and  to  this  court. 

All   concur. 

Order  reversed  and  judgment  affirmed.^ 

*  See  also  Crowley  v.  West  End,  149  Ala.  349,  43  So.  359.— Ed. 


SECT.    II. 1  CLu\RK   V.    CHAMBERS.  125 


CLARK  V.   CHAMBERS. 
High  Court  of  Justice,  Queen's  Bench  Division,  1878. 

[Reported  3  Q.  B.  D.  327.] 

CocKBURN,  C.  J.  This  is  a  case  of  considerable  nicety,  and  which, 
so  far  as  the  precise  facts  are  concerned,  presents  itself  for  the  first 
time. 

The  defendant  is  in  the  occupation  of  premises  which  abut  on  a 
private  road  leading  to  certain  other  premises  as  well  as  to  his;  it 
consists  of  a  carriage  road  and  a  footway.  The  soil  of  both  is  the 
property  of  a  different  owner;  the  defendant  has  no  interest  in  it 
beyond  the  right  of  way  to  and  from  his  premises. 

The  defendant  uses  his  premises  as  a  place  where  athletic  sports 
are  carried  on  by  persons  resorting  thereto  for  that  purpose  for  their 
own  amusement.  His  customers  finding  themselves  annoyed  by  persons 
coming  along  the  road  in  question  in  carts  and  vehicles  and  stationing 
themselves  opposite  to  his  grounds  and  overlooking  the  sports,  the 
height  of  the  carts  and  vehicles  enabling  them  to  see  over  the  fence, 
the  defendant  erected  a  barrier  across  the  road  for  the  purpose  of 
preventing  vehicles  from  getting  as  far  as  liis  grounds. 

This  barrier  consisted  of  a  hurdle  set  up  lengthways  next  to  the  foot- 
path, then  two  wooden  barriers  armed  with  spikes,  commonly  called 
chevaux  de  frise,  then  there  was  left  an  open  space  through  which  a 
vehicle  could  pass;  then  came  another  large  hurdle  set  up  lengthways, 
which  blocked  up  the  rest  of  the  road.  At  ordinary  times  the  space 
between  the  two  dixdsions  of  the  barrier  was  left  open  for  vehicles  to 
pass  which  might  be  going  to  any  of  the  other  premises  to  which  the 
road  in  question  led.  But  at  the  times  when  the  sports  were  going  on,  a 
pole  attached  by  suitable  apparatus  was  carried  across  from  the  one 
part  of  the  barrier  to  the  other,  and  so  the  road  was  effectually  blocked. 

Amongst  the  houses  and  grounds  to  which  this  private  road  led  was 
that  ojf  a  Mr.  Bruen.  On  the  evening  on  which  the  accident  which  gave 
rise  to  the  present  action  occurred  the  plaintiff,  who  occupied  premises 
in  the  immediate  neighbourhood,  accompanied  Mr.  Bruen,  by  the  in- 
vitation of  the  latter,  to  Bruen's  house.  It  was  extremely  dark,  but 
being  aware  of  the  barrier  and  the  opening  in  it,  they  found  the  opening, 
the  pole  not  being  set  across  it,  and  passed  through  it  in  safety ;  but  on 
his  return,  later  in  the  evening,  the  plaintiff  was  not  equally  fortunate. 
It  appears  that,  in  the  course  of  that  day  or  the  day  previous,  some 
one  had  removed  one  of  the  chevaux  de  frise  hurdles  from  the  place 
where  it  had  stood,  and  had  placed  it  in  an  upright  position  across  the 
footpath.     Coming  back  along  the  middle  of  the  road,  the  plaintiff. 


126  CLARK    I'.    CH.^IBERS.  [ciIAP.    III. 

feeling  his  way,  passed  safely  through  the  openino;  in  the  centre  of  the 
barrier;  having  done  which,  being  wholly  unaware,  it  being  much  too 
dark  to  see,  that  there  was  any  obstruction  on  the  footpath,  he  turned 
on  to  the  latter,  intending  to  walk  along  it  the  rest  of  the  way.  He 
had  advanced  only  two  or  three  steps  when  his  eye  came  into  collision 
with  one  of  the  spikes,  the  effect  of  which  was  that  the  eye  was  forced 
out  of  its  socket.  It  did  not  appear  by  whom  the  chevaux  de  frise  hurdle 
had  been  thus  removed,  but  it  was  e^qjressly  found  by  the  jury  that 
this  was  not  done  by  the  defendant  or  by  his  authority.  The  question 
is,  whether  the  defendant  can  be  held  liable  for  the  injury  thus  occa- 
sioned. It  is  admitted  that  what  the  defendant  did  in  erecting  this  bar- 
rier across  the  road  was  unauthorized  and  wrongful,  and  it  is  not  dis- 
puted that  the  plaintiff  was  lawfully  using  the  road.  There  is  no  ground 
for  imputing  to  him  any  negligence  contributing  to  the  accident. 
The  jury  have  expressly  found,  in  answer  to  a  question  put  to  them  by 
me,  that  the  use  of  the  chevaux  de  frise  in  the  road  was  dangerous  to 
the  safety  of  persons  using  it.  The  ground  of  defense  in  point  of  law 
taken  at  the  trial  and  on  the  argimient  on  the  rule  was,  that,  although 
if  the  injury  had  resulted  from  the  use  of  the  chevaux  de  frise  hurdle 
as  placed  by  the  defendant  on  the  road,  the  defendant,  on  the  facts 
as  admitted  or  as  found  by  the  jury,  might  have  been  liable;  yet, 
as  the  immediate  cause  of  the  accident  was  not  the  act  of  the  defend- 
ant, but  that  of  the  person,  whoe^'er  he  may  have  been,  who  re- 
moved the  spiked  hurdle  from  where  the  defendant  had  fixed  it  and 
placed  it  across  the  footway,  the  defendant  could  not  be  held  liable  for 
an  injury  resulting  from  the  act  of  another.  On  the  part  of  the  plaintiff 
it  was  contended  that  as  the  act  of  the  defendant  in  placing  a  dangerous 
instrument»on  the  road  had  been  the  primary  cause  of  the  e\'il,  by 
affording  the  occasion  for  its  being  removed  and  placed  on  the  foot- 
path, and  so  causing  the  injury  to  the  plaintiff,  he  was  responsible  in 
law  for  the  consequences.  Numerous  authorities  were  cited  in  sup- 
port of  this  position.  The  first  is  the  case  of  Scott  v.  Shepherd, 
3  Wils.  403;  2  W.  Bl.  892.  In  that  case  the  defendant  threw  a  lighted 
squib  into  a  market  house  where  several  persons  were  assembled.  It 
fell  upon  a  standing,  the  owner  of  which,  in  self-defence,  took  it  up 
and  threw  it  across  the  market  house.  It  fell  upon  another  standing, 
the  owner  of  which,  in  self-defence,  took  it  up  and  threw  it  to  another 
part  of  the  market  house,  and  in  its  course  it  struck  the  plaintiff,  and 
exploded  and  put  out  his  eye.  The  defendant  was  held  liable,  although 
without  the  intervention  of  a  third  person  the  squib  would  not  have  in 
jured  the  plaintiff. 

In  Dixon  v.  Bell,  5  M.  &  S.  198,  the  defendant,  ha\nng  left  a  loaded 
gun  with  another  man,  sent  a  young  girl  to  fetch  it,  with  a  message  to 
the  man  in  whose  custody  it  was  to  remove  the  priming,  which  the 
latter,  as  he  thought,  did,  but,  as  it  turned  out,  did  not  do  effectually. 
The  girl  brought  it  home,  and,  thinking  that  the  priming  ha\^ng  been 


SECT.    II.]  CLARK    V.    CILAJUBERS.  127' 

removed  the  gun  could  not  go  off,  pointed  it  at  the  plaintiff's  son,  a 
child,  and  pulled  the  trigger.  The  gun  went  off  and  injured  the  child. 
The  defendant  was  held  liable,  "as  by  this  want  of  care,"  says  Lord 
Ellenborough  —  that  is,  by  leaving  the  gun  without  drawing  the  charge 
or  seeing  that  the  priming  had  been  properly  removed  —  "  the  instru- 
ment was  left  in  a  state  capable  of  doing  mischief,  the  law  will  hold  the 
defendant  responsible.  It  is  a  hard  case,  undoubtedly;  but  I  think 
the  action  is  maintainable." 

In  Ilott  V.  \Yilkes,  3  B.  &  A.  304  —  the  well-known  case  as  to  spring- 
guns  —  it  became  unnecessary  to  determine  how  far  a  person  setting 
spring-guns  would  be  liable  to  a  person  injured  by  such  a  gun  going  off, 
even  though  such  person  were  a  trespasser,  inasmuch  as  the  plaintiff, 
ha\ang  had  notice  that  spring-guns  were  set  in  a  particular  wood,  had 
voluntarily  exposed  himself  to  the  danger.  But  both  Mr.  Justice 
Bayley  and  Mr.  Justice  Holroyd  appear  to  have  thought  that  with- 
out such  notice  the  action  would  have  lain,  the  use  of  such  instruments 
being  unreasonably  disproportioned  to  the  end  to  be  obtained,  and 
dangerous  to  the  lives  of  persons  who  might  be  innocently  trespassing. 
Looking  to  their  language,  it  can  scarcely  be  doubted  that  if,  instead 
of  injuring  the  plaintiff,  the  gun  which  he  caused  to  go  off  had  struck  a 
person  passing  lawfully  along  a  path  leading  through  the  wood,  they 
would  have  held  the  defendant  liable. 

In  Jordin  v.  Crump,  8  M.  &  W.  782,  the  use  of  dog-spears  was 
held  not  illegal;  but  there  the  injury  done  to  the  plaintiff's  dog  was 
alone  in  question.  If  the  use  of  such  an  instrument  had  been  pro- 
ductive of  injury  to  a  human  being,  the  result  might  have  been  dif- 
ferent. 

In  Illidge  v.  Goodwin,  5  C.  &  P.  192,  the  defendant's  cart  and  horse 
were  left  standing  in  the  street  without  any  one  to  attend  to  them.  A 
person  passing  by  whipped  the  horse,  which  caused  it  to  back  the  cart 
against  the  plaintiff's  window.  It  was  urged  that  the  man  who  whipped 
the  horse,  and  not  the  defendant,  was  liable.  It  was  also  contended  that 
the  bad  management  of  the  plaintiff's  shopman  had  contributed  to  the 
accident.  But  Tindal,  C.  J.,  ruled  that,  even  if  this  were  believed,  it 
would  not  avail  as  a  defence.  "  If,"  he  says,  "a  man  chooses  to  leave 
a  cart  standing  on  the  street,  he  must  take  the  risk  of  any  mischief 
that  may  be  done."  Lynch  v.  Nurdin,  1  Q.  B.  29,  is  a  still  more 
striking  case.  There,  as  in  the  former  case,  the  defendant's  cart  and 
horse  had  been  left  standing  imattended  in  the  street.  The  plaintiff, 
a  child  of  seven  years  of  age,  playing  in  the  street  with  other  boys,  was 
getting  into  the  cart  when  another  boy  made  the  horse  move  on. 
The  plaintiff  was  thrown  down,  and  the  wheel  of  the  cart  went  over  his 
leg  and  fractured  it.  A  considered  judgment  was  delivered  by  Lord 
Denman.  He  says,  "  It  is  urged  that  the  mischief  was  not  produced  by 
the  mere  negligence  of  the  servant  as  asserted  in  the  declaration,  but  at 
most  by  that  negligence  in  combination  with  two  other  active  causes,  the 


128  CLARK    V.    CHAMBERS.  [CHAP.    III. 

advance  of  the  horse  in  consequence  of  his  being  excited  by  the  other 
boy,  and  the  plaintiff's  improper  conduct  in  mounting  the  cart  and 
committing  a  trespass  on  the  defendant's  chattel.  On  the  former  of 
these  two  causes  no  great  stress  was  laid,  and  I  do  not  apprehend  that 
it  can  be  necessary  to  dwell  on  it  at  any  length.  For  if  I  am  guilty  of 
negligence  in  leaving  anything  dangerous  where  I  know  it  to  be  ex- 
tremely probable  that  some  other  person  will  imjustifiably  set  it  in 
motion  to  the  injury  of  a  third,  and  if  that  injury  should  be  so  brought 
about,  I  presume  that  the  sufferer  might  have  redress  by  action  against 
both  or  either  of  the  two,  but  unquestionably  against  the  first."  And 
then,  by  way  of  illustration,  the  Chief  Justice  puts  the  case  of  a  game- 
keeper leaving  a  loaded  gun  against  the  wall  of  a  play-ground  where 
school  boys  were  at  play,  and  one  of  the  boys  in  play  letting  it  off  and 
wounding  another.  "  I  think  it  will  not  be  doubted,"  says  Lord 
Denman,  "that  the  gamekeeper  must  answer  in  damages  to  the 
wounded  party."  "  This,"  he  adds,  "  might  possiVjly  be  assumed  as  clear 
in  principle,  but  there  is  also  the  authority  of  the  present  Chief  Justice 
of  the  Common  Pleas  in  its  support  in  lUidge  «'.  Goodwin."  It 
is  unnecessary  to  follow  the  judgment  in  the  consideration  of  the 
second  part  of  the  case,  namely,  whether  the  plaintiff,  ha\ing  con- 
tributed to  the  accident  by  getting  into  the  cart,  was  prevented  from 
recovering  in  the  action,  as  no  such  question  arises  here.  In  Daniels 
i\  Potter,  4  C.  &  P.  262,  the  defendants  had  a  cellar  opening  to  the 
street.  The  flap  of  the  cellar  had  been  set  back  while  the  defendants' 
men  were  lowering  casks  into  it,  as  the  plaintiff  contended,  without 
proper  care  ha\ang  been  taken  to  secure  it;  the  flap  fell  and  injured  the 
plaintiff.  The  defendant  maintained  that  the  flap  had  been  properly 
fastened,  but  also  set  up  as  a  defence  that  its  fall  had  been  caused  by 
some  children  pla^^ing  with  it.  But  the  only  question  left  to  the  jury 
by  Tindal,  C.  J.,  was  whether  the  defendant's  men  had  used  reasonable 
care  to  secure  the  flap.  His  direction  implies  that  in  that  case  only 
would  the  intervention  of  a  third  party  causing  the  injury  be  a  defence. 

The  cases  of  Hughes  r.  Macfie,  2  H.  &  C.  744;  33  L.  J.  (Ex.)  177, 
and  Abbott  v.  Macfie,  2  H.  &  C.  744;  33  L.  J.  (Ex.)  177,  two  actions 
arising  out  of  the  same  circumstances,  and  tried  in  the  Passage  Court 
at  Liverpool,  though  at  variance  with  some  of  the  foregoing,  so  far  as 
relates  to  the  effect  on  the  plaintiff's  right  to  recover  where  his  own  act 
as  a  trespasser  has  contributed  to  the  injury  of  which  he  complains,  is 
in  accordance  with  them  as  respects  the  defendant's  liability  for  his 
own  act,  where  that  act  is  the  primary  cause,  though  the  act  of  another 
may  have  led  to  the  immediate  result. 

The  defendants  had  a  cellar  opening  to  the  street.  Their  men  had 
taken  up  the  flap  of  the  cellar  for  the  purpose  of  lowering  casks  into  it, 
and,  having  reared  it  against  the  wall  nearly  upright  with  its  lower 
face,  on  which  there  were  cross-bars,  towards  the  street,  had  gone  away. 
The  plaintiff  in  one  of  the  actions,  a  child  five  years  old,  got  upon  the 


SECT.    II.]  CLARK   V.    CHAMBERS.  129 

cross-bars  of  the  flap,  and  in  jumping  off  them  brought  down  the  flap 
on  himself  and  another  child,  the  plaintiff  in  the  other  action,  and 
both  were  injured.  It  was  held,  that  while  the  plaintiff  whose  act  had 
caused  the  flap  to  fall  could  not  recover,  the  other  plaintiff  who  had 
been  injured  could,  provided  he  had  not  been  playing  with  the  other 
so  as  to  be  a  joint  actor  with  him. 

Bird  V.  Holbrook,  4  Bing.  628,  is  another  striking  case,  as  there  the 
plaintiff  was  undoubtedly  a  trespasser.  The  defendant  being  the  owner 
of  a  garden,  which  was  at  some  distance  from  his  dwelling-house,  and 
which  was  subject  to  depredations,  had  set  in  it  without  notice  a  spring- 
gun  for  the  protection  of  his  property.  The  plaintiff,  who  was  not 
aware  that  a  spring-gun  was  set  in  the  garden  in  order  to  catch  a  pea- 
fowl, the  property  of  a  neighbour,  which  had  escaped  into  the  garden, 
got  over  the  wall,  and  his  foot  coming,  in  his  pursuit  of  the  bird,  into 
contact  with  the  wire  which  communicated  with  the  gun,  the  latter  went 
off  and  injured  him.  It  was  held,  though  his  own  act  had  been  the 
immediate  cause  of  the  gun  going  off,  yet  that  the  unlawful  act  of  the 
defendant  in  setting  it  rendered  the  latter  liable  for  the  consequences. 

In  the  course  of  the  discussion  a  similar  case  of  Jay  v.  Whitfield, 
3  B.  &  Ad.  308,  at  p.  644,  was  mentioned  —  tried  before  Richards, 
C.  B.,  —  in  which  a  plaintiff  who  had  trespassed  upon  premises  in 
order  to  cut  a  stick  and  had  been  similarly  injured,  had  recovered 
substantial  damages,  and  no  attempt  had  been  made  to  disturb  the 
verdict. 

In  Hill  V.  New  River  Company,  9  B.  &  S.  308,  the  defendants  created 
a  nuisance  in  a  public  highway  by  allowing  a  stream  of  water  to  spout 
up  open  and  unfenced  in  the  road.  The  plaintiff's  horses  passing  along 
the  road  with  his  carriage  took  fright  at  the  water  thus  spouting  up,  and 
swerved  to  the  other  side  of  the  road.  It  so  happened  that  there  was  in 
the  road  an  open  ditch  or  cutting,  which  had  been  made  by  contractors 
who  were  constructing  a  sewer,  and  which  had  been  left  unfenced  and 
unguarded,  which  it  ought  not  to  have  been.  Into  this  ditch  or  cutting, 
owing  to  its  being  unfenced,  the  horses  fell  and  injured  themselves  and 
the  carriage.  It  was  contended  that  the  remedy,  if  any,  was  against 
the  contractors;  but  it  was  held  that  the  plaintiff  was  entitled  to 
recover  against  the  company. 

In  Burrows  v.  March  Gas  and  Coke  Company,  Law  Rep.  7  Ex.  96, 
it  was  held  in  the  Exchequer  Chamber,  affirming  a  judgment  of  the 
Court  of  Exchequer,  that  where,  through  a  breach  of  contract  by  the 
defendants  in  not  serving  the  plaintiff  with  a  proper  pipe  to  convey  gas 
from  their  main  into  his  premises,  an  escape  of  gas  had  taken  place, 
whereupon  the  servant  of  a  gasfitter  at  work  on  the  premises  ha\-ing 
gone  into  the  part  of  the  premises  where  the  escape  had  occurred,  with 
a  lighted  candle,  and  examining  the  pipe  with  the  candle  in  his  hand, 
an  explosion  took  place,  by  which  the  premises  were  injured,  the 
defendants  were  liable,  though  the  explosion  had  been  immediately 


loO         '  CLARK    l\    CHAMBERS.  [cHAP.    III. 

caused  by  the  imprudence  of  the  gasfitter's  man  in  examining  the  pipe 
with  a  Hghted  candle  in  his  hand. 

In  Colhns  v.  Middle  Level  Commissioners,  Law  Rep.  4  C.  P.  279, 
the  defendants  were  boimd  under  an  Act  of  Parliament  to  construct  a 
cut  with  proper  walls,  gates,  and  sluices,  to  keep  out  the  waters  of  a 
tidal  river,  and  also  a  culvert  under  the  cut,  to  carry  off  the  drainage 
of  the  lands  l^ang  east  of  the  cut,  and  to  keep  the  same  open  at  all  times. 
In  consequence  of  the  defective  construction  of  the  gates  and  sluices, 
the  waters  of  the  ri\'er  flowed  into  the  cut,  and,  bursting  its  western 
bank,  flooded  the  adjoining  lands.  The  plaintiff  and  other  proprietors 
on  the  eastern  side  closed  the  culvert,  and  so  protected  their  lands;  but 
the  proprietors  on  the  western  side,  to  lessen  the  evil  to  themselves, 
reopened  the  culvert,  and  so  increased  the  overflow  on  the  plaintiff's 
land,  and  caused  injury  to  it.  The  defendants  sought  to  ascribe  the 
injury  to  the  act  of  the  western  proprietors  in  remo\'ing  the  obstruction 
which  those  on  the  other  side  had  placed  at  the  culvert.  But  it  was 
held  that  the  negligence  of  the  defendants  was  the  substantial  cause 
of  the  mischief.  "The  defendants,"  says  Mr.  Justice  Montague  Smith, 
"  cannot  excuse  themselves  from  the  natural  consequences  of  their  neg- 
ligence by  reason  of  the  act,  whether  rightful  or  wrongful,  of  those 
who  removed  the  obstruction  placed  in  the  culvert  under  the  circum- 
stances found  in  this  case."  "The  primary  and  substantial  cause  of 
the  injury,"  says  Mr.  Justice  Brett,  "was  the  negligence  of  the  defend- 
ants, and  it  is  not  competent  to  them  to  say  that  they  are  absolved 
from  the  consequences  of  their  wrongful  act  by  what  the  plaintiff  or 
some  one  else  did." —  "I  cannot  see  how  the  defendants  can  excuse 
themselves  by  urging  that  the  plaintiff  was  prevented  by  other  wrong- 
doers from  preventing  a  part  of  the  injury." 

The  case  of  Harrison  v.  Great  Northern  Railway,  3  H.  &  C.  231;  33 
L.  J.  (Ex.)  266,  belongs  to  the  same  class.  The  defendants  were  bound 
under  an  Act  of  Parliament  to  maintain  a  delph  or  drain  with  banks  for 
carr;^ang  oft'  water  for  the  protection  of  the  adjoining  lands.  At  the 
same  time  certain  commissioners,  appointed  under  an  Act  of  Parliament, 
were  bound  to  maintain  the  naxngation  of  the  river  Witham,  with  which 
the  delph  communicated.  There  ha\-ing  been  an  extraordinary  fall  of 
rain,  the  water  in  the  delph  rose  nearly  to  the  height  of  its  banks,  when 
one  of  them  gave  way  and  caused  the  damage  of  which  the  plaintiff  com- 
plained. It  was  found  that  the  bank  of  the  delph  was  not  in  a  proper 
condition,  but  it  was  also  found,  and  it  was  on  this  that  the  defendants 
relied  as  a  defence,  that  the  breaking  of  the  bank  had  been  caused 
by  the  water  in  it  ha\nng  been  penned  back,  owing  to  the  neglect  of 
the  commissioners  to  maintain  in  a  proper  state  certain  works  which  it 
was  their  duty  to  keep  up  under  their  Act.  Nevertheless,  the  defend- 
ants were  held  liable. 

These  authorities  would  appear  to  be  sufficient  to  maintain  the 
plaintiff's  right  of  action  under  the  circumstances  of  this  case.     It 


SECT.    II.]  CLARK    V.    CHAMBERS.  131 

must,  however,  be  admitted  that  in  one  or  two  recent  cases  the  Courts 
have  shewn  a  disposition  to  confine  the  Habihty  arising  from  unlawful 
acts,  negligence,  or  omissions  of  duty  within  narrower  limits,  by  hold- 
ing a  defendant  liable  for  those  consequences  only  which  in  the  ordinary 
course  of  things  were  likely  to  arise,  and  which  might  therefore 
reasonably  be  expected  to  arise,  or  which  it  was  contemplated  by 
the  parties  might  arise,  from  such  acts,  negligence,  or  omissions. 
In  Greenland  i).  Chaphn,  5  Ex.  243,  at  p.  248,  Pollock,  C.  B.,  says:  "I 
entertain  considerable  doubt  whether  a  person  who  is  guilty  of  negli- 
gence is  responsible  for  all  the  consequences  which  may  under  any 
circumstances  arise,  and  in  respect  of  mischief  which  could  by  no  pos- 
sibility have  been  foreseen,  and  which  no  reasonable  person  would 
have  anticipated."  Acting  on  this  principle,  the  Court  of  Common 
Pleas,  in  a  recent  case  of  Sharp  v.  Powell,  Law  Rep.  7  C.  P.  253,  held 
that  the  action  would  not  lie  where  the  injury,  though  arising  from  the 
unlawful  act  of  the  defendant,  could  not  have  been  reasonably  expected 
to  follow  from  it.  The  defendant  had,  contrary  to  the  provisions  of  the 
Police  Act,  washed  a  van  in  the  street,  and  suffered  the  water  used  for 
the  purpose  to  flow  down  a  gutter  towards  a  sewer  at  some  little  dis- 
tance. The  weather  being  frosty,  a  grating,  through  which  water  flow- 
ing down  the  gutter  passed  into  the  sewer,  had  become  frozen  over, 
in  consequence  of  which  the  water  sent  down  by  the  defendant, 
instead  of  passing  into  the  sewer,  spread  over  the  street  and  became 
frozen,  rendering  the  street  slippery.  The  plaintiff's  horse  coming  along 
fell  in  consequence,  and  was  injured.  It  was  held  that  as  there  was 
notliing  to  show  that  the  defendant  was  aware  of  the  obstruction  of 
the  grating,  and  as  the  stoppage  of  the  water  was  not  the  necessary  or 
probable  consequence  of  the  defendant's  act,  he  was  not  responsible  for 
what  had  happened. 

Bovill,  C.  J.,  there  says:  "Xo  doubt,  one  who  commits  a  wrong- 
ful act  is  responsible  for  the  ordinary  consequences  which  are  likely 
to  result  therefrom,  but,  generally  speaking,  he  is  not  liable  for  damage 
which  is  not  the  natural  or  ordinary  consequence  of  such  act,  unless  it 
be  shewn  that  he  knows,  or  has  reasonable  means  of  knowing,  that 
consequences  not  usually  resulting  from  the  act  are,  by  reason  of  some 
existing  cause,  likejy  to  intervene  so  as  to  occasion  damage  to  a  third 
person.  Where  there  is  no  reason  to  expect  it,  and  no  knowledge  in 
the  person  doing  the  wrongful  act  that  such  a  state  of  things  exists 
as  to  render  the  damage  probable,  if  injury  does  result  to  a  third  person 
it  is  generally  considered  that  the  wrongful  act  is  not  the  proximate 
cause  of  the  injury  so  as  to  render  the  wrongdoer  liable  to  an  action." 
And  Grove,  J.,  said:  "I  am  entirely  of  the  same  opinion.  I  think 
the  act  of  the  defendant  was  not  the  ordinary  or  proximate  cause 
of  the  damage  to  the  plaintiff's  horse,  or  within  the  ordinary  con- 
sequences which  the  defendant  may  be  presumed  to  have  contem- 
plated, or  for  which  he  is  responsible.     The  expression,  the  'natural' 


132  CLARK   V.    CHAMBERS.  [CHAP.    III. 

consequence,  which  has  been  used  in  so  many  cases,  and  which  I  myself 
have  no  doubt  often  used,  by  no  means  conveys  to  the  mind  an  ade- 
quate notion  of  what  is  meant;  'probable'  would  perhaps  be  a  better 
expression.  If  on  the  present  occasion  the  water  had  been  allowed  to 
accumulate  round  the  spot  where  the  washing  of  the  van  took  place, 
and  had  there  frozen  obviously  within  the  sight  of  the  defendant,  and 
the  plaintiff's  horse  had  fallen  there,  I  shoidd  have  been  inclined  to 
think  that  the  defendant  would  have  been  responsible  for  the  conse- 
quences which  had  resulted."  And  Mr.  Justice  Keating  .said:  "The 
damage  did  not  immediately  flow  from  the  wrongful  act  of  the  defend- 
ant, nor  was  such  a  probable  or  likely  result  as  to  make  him  responsible 
for  it.  The  natural  consequence,  if  that  be  a  correct  expression,  of  the 
wrongful  act  of  the  defendant  would  have  been  that  the  water  would  un- 
der ordinary  circumstances  have  flowed  along  the  gutter  or  channel,  and 
so  down  the  grating  to  the  sewer.  The  stoppage  and  accumulation 
of  the  water  was  caused  by  ice  or  other  obstruction  at  the  drain,  not 
shewn  to  have  been  known  to  the  defendant,  and  for  which  he  was  in  no 
degree  responsible.  That  being  so,  it  would  ob\dously  be  unreasonable 
to  trace  the  damage  indirectly  back  to  the  defendant." 

We  acquiesce  in  the  doctrine  thus  laid  down  as  applicable  to  the  cir- 
cumstances of  the  particular  case,  but  we  doubt  its  applicability  to 
the  present,  which  appears  to  us  to  come  within  the  principle  of  Scott 
V.  Shepherd  and  Dixon  v.  Bell,  and  the  other  cases  to  which  we 
have  referred.  At  the  same  time,  it  appears  to  us  that  the  case  before 
us  will  stand  the  test  thus  said  to  be  the  true  one.  For  a  man  who 
unlawfully  places  an  obstruction  across  either  a  public  or  private 
way  may  anticipate  the  removal  of  the  obstruction,  by  some  one  entitled 
to  use  the  way,  as  a  thing  likely  to  happen ;  and  if  this  should  be  done, 
the  probability  is  that  the  obstruction  so  removed  wall,  instead  of  being 
carried  away  altogether,  be  placed  somewhere  near;  thus,  if  the  obstruc- 
tion be  to  the  carriageway,  it  will  very  likely  be  placed,  as  was  the  case 
here,  on  the  footpath.  If  the  obstruction  be  a  dangerous  one,  whereso- 
ever placed,  it  may,  as  was  the  case  here,  become  a  source  of  damage, 
from  which,  should  injury  to  an  innocent  party  occur,  the  original 
author  of  the  mischief  should  be  held  responsible.  IVIoreover,  we  are 
of  opinion  that,  if  a  person  places  a  dangerous  obstruction  in  a  high- 
way, or  in  a  private  road,  over  wliich  persons  have  a  right  of  way,  he 
is  bound  to  take  all  necessary  precaution  to  protect  per.sons  exercising 
their  right  of  way,  and  that  if  he  neglects  to  do  so  he  is  liable  for  the 
consequences.  It  is  unnecessary  to  consider  how  the  matter  would  have 
stood  had  the  plaintiff  l)een  a  trespasser.  The  case  of  Mangan  v. 
Atterton,  4  H.  &  C.  388;  Law  Rep.  1  Ex.  239,  was  cited  before  us  as 
a  strong  authority  in  favor  of  the  defendant.  The  defendant  had 
there  exposed  in  a  public  market-place  a  machine  for  crushing  oilcake 
without  its  being  thrown  out  of  gear,  or  the  handle  being  fastened,  or 
any  person  having  the  care  of  it.    The  plaintift",  a  boy  of  four  years  of 


SECT.    II.]  CLARK    V.    CH.\]VIBERS.  133 

age,  returning  from  school  with  his  brother,  a  boy  of  seven,  and  some 
other  boys,  stopped  at  the  macliine.  One  of  the  boys  began  to  turn 
the  handle;  the  plaintiff,  at  the  suggestion  of  his  brother,  placed  his 
hand  on  the  cogs  of  the  wheels,  and  the  machine  being  set  in  motion, 
three  of  his  fingers  were  crushed.  It  was  held  by  the  Court  of 
Exchequer  that  the  defendant  was  not  liable,  first,  because  there  was 
no  negligence  on  the  part  of  the  defendant,  or,  if  there  was  negligence, 
it  was  too  remote;  and  secondly,  because  the  injury  was  caused  by  the 
act  of  the  boy  who  turned  the  handle,  and  of  the  plaintiff  himself, 
who  was  a  trespasser.  With  the  latter  ground  of  the  decision  we 
have  in  the  present  case  nothing  to  do;  otherwise  we  should  have  to 
consider  whether  it  should  prevail  against  the  cases  cited,  with  which 
it  is  obviously  in  conflict.  If  the  decision  as  to  negligence  is  in  con- 
flict wath  our  judgment  in  this  case,  we  can  only  say  we  do  not  acquiesce 
in  it.  It  appears  to  us  that  a  man  who  leaves  in  a  public  place,  along 
which  persons,  and  amongst  them  cliildren,  have  to  pass,  a  dangerous 
machine  which  may  be  fatal  to  any  one  who  touches  it,  without  any 
precaution  against  mischief,  is  not  only  guilty  of  negligence,  but  of 
negligence  of  a  very  reprehensible  character,  and  not  the  less  so  because 
the  imprudent  and  unauthorized  act  of  another  may  be  necessary  to 
realize  the  mischief  to  which  the  unlawful  act  or  negligence  of  the 
defendant  has  given  occasion.  But  be  this  as  it  may,  the  case  cannot 
govern  the  present.  For  the  decision  proceeded  expressly  on  the 
ground  that  there  had  been  no  default  in  the  defendant;  here  it  cannot 
be  disputed  that  the  act  of  the  defendant  was  unlawful. 

On  the  whole,  we  are  of  opinion,  both  on  principle  and  authority, 
that  the  plaintiff  is  entitled  to  our  judgment. 

Judgment  for  the  plaintiff} 

1  See  also  Howe  v.  Ohmart,  7  Ind.  App.  32,  33  N.  E.  466.  —  Ed. 


134  PULLMAN    PALACE    CAR   CO.    l\    BLUHM.  [ciL^P.    IH. 


PULLMAN  PALACE  CAR  CO.   v.   BLUHM. 

Supreme  Court  of  Illinois,  1884. 
[Reported  109  III.  20.] 

The  action  rests  upon  allegations  by  appellee,  in  his  declara- 
tion, that  being  a  laborer  for  appellant,  using  a  defecti^'e  der- 
rick of  appellant  in  elevating  lumber  to  the  upper  part  of  a 
building  of  appellant,  he  was  hurt  by  the  falling  of  the  lumber 
upon  him,  "maiming,  bruising,  and  battering  him,  and  breaking 
and  bruising  his  arm,  and  so  disabling  him  that  he  has  been 
unable  to  do  manual  labor  from  thence  hitherto  and  remains  still 
in  the  same  condition,"  and  that  the  falling  of  the  lumber  was 
caused  "by  reason  of  the  unskillful  and  defective  workmanship  of 
defendant"  in  constructing  and  erecting  the  derrick,  and  "without 
any  fault"  upon  the  part  of  plaintiff. 

Dickey,  J.  ...  It  is  insisted  that  the  court  erred  in  permitting  plain- 
tiff to  prove,  in  enhancement  of  his  damages,  that  his  arm,  which  was 
broken  between  the  shoulder  and  elbow,  was  not  cured,  and  that  the 
parts  of  the  bone,  instead  of  uniting  in  one,  had  failed  to  unite,  and 
formed  what  is  called  a  "false  joint."  Appellant  insists  that  this  last 
was  the  result  of  bad  surgery,  and,  to  be  proven,  should  have  been 
set  out  as  special  damages,  not  being,  as  he  suggests,  such  damages 
as  ordinarily  arise  from  a  broken  arm.  We  think  the  declaration  is 
sufficiently  specific  to  admit  the  proof.  Whether  this  particular 
ailment  (the  false  joint)  was,  or  was  not,  the  result  of  the  breaking 
of  the  arm  as  a  proximate  cause,  or  the  result  of  a  new,  independent 
factor,  for  which  appellant  was  not  responsible,  could  not  be  determined 
by  the  court  as  a  question  of  law.  It  could  be  properly  tested  only 
by  hearing  the  e\'idence  and  submitting  the  questions  of  fact  to  a 
jury,  under  appropriate  instructions. 

There  is  evidence  tending  to  show  that  had  this  broken  arm  received 
ordinary  care  and  professional  skill,  the  parts  would  have  united  \\'ith 
little  or  no  permanent  injury,  and  on  this  hypothesis  alone  appellant 
insists  that  the  matter  of  this  false  joint  should  have  been,  at  least 
hypothetically,  excluded  from  the  jury.  We  understand  the  law  on 
this  subject  to  be,  that  plaintiff  cannot  hold  defendant  answerable 
for  any  injury  caused,  even  in  part,  by  the  fault  of  plaintiff  in  failing 
to  use  ordinary  care  or  ordinary  judgment,  or  for  any  injury  not  re- 
sulting from  the  fault  of  defendant,  but  caused  by  some  new  inter- 
vening cause  not  incident  to  the  injury  caused  by  defendant's  wTong. 
Thus,  in  this  case,  if  it  be  conceded  that  the  false  joint,  under  proper 


SECT.  II.]     SAUTER  V.  N.  Y.  CENTRAL  &  HUDSON  RIVER  R.   R.  CO.     135 

care  and  skill,  would  not  have  resulted  from  the  breaking  of  the  arm 
alone,  but  was  brought  about  by  the  subsequent  separation  of  the 
parts  after  they  had  been  properly  set,  and  before  nature  had  formed  a 
firm  union,  then,  if  this  subsequent  separation  of  the  parts  had  been 
caused  by  an  assault  and  battery  by  a  stranger,  or  some  foreign  cause 
with  which  appellant  had  no  connection,  and  which  was  not  in  its 
nature  incident  to  a  broken  arm,  plainly  appellant  ought  not  to  he  held 
to  answer  for  the  false  joint;  but  if  appellee  exercised  ordinary  care  to 
keep  the  parts  together,  and  used  ordinary  care  in  the  selection  of 
surgeons  and  doctors,  and  nurses,  if  needed,  and  employed  those  of 
ordinary  skill  and  care  in  their  profession,  and  still  by  some  unskillful 
or  negligent  act  of  such  nurses,  or  doctors  or  surgeons,  the  parts  be- 
came separated,  and  the  false  joint  was  the  result,  appellant,  if  re- 
sponsible for  the  breaking  of  the  arm,  ought  to  answer  for  the  injury 
in  the  false  joint.  The  appellee,  when  injured,  was  bound  by  law  to  use 
ordinary  care  to  render  the  injury  no  greater  than  necessary.  It  was 
therefore  his  duty  to  employ  such  surgeons  and  nurses  as  ordinary 
prudence  in  his  situation  required,  and  to  use  ordinary  judgment  and 
care  in  doing  so,  and  to  select  only  such  as  were  of  at  least  ordinary 
skill  and  care  in  their  profession.  But  the  law  does  not  make  him 
an  insurer  in  such  case  that  such  surgeons  or  doctors,  or  nurses,  w\\\ 
be  guilty  of  no  negligence,  error  in  judgment,  or  want  of  care.  The 
liability  to  mistakes  in  curing  is  incident  to  a  broken  arm,  and  where 
such  mistakes  occur  (the  injured  party  using  ordinary  care)  the 
injury  resulting  from  such  mistakes  is  properly  regarded  as  part  of 
the  immediate  and  direct  damages  resulting  from  the  breaking  of  the 
arm.^ 


SAUTER   V.    NEW   YORK   CENTRAL    &    HUDSON    RIVER 

;  RAILROAD    CO. 

Court  of  Appeals  of  New  York,  1 876. 
[Reported  66  N.   Y.  .50.] 

Church,  C.  J.  The  circumstances  proved  were  sufficient  to  author- 
ize the  jury  to  find  that  the  injury  was  caused  by  the  act  of  the  de- 
fendant's employees.  The  CAndence  tends  to  show  that  as  the  plaintiff's 
intestate  was  passing  out  of  the  car  to  alight,  a  sudden  jerk  was  given 

1  See  also  Wallace  v.  Pennsylvania  R.  R.,  222  Pa.  556,  71  Atl.  10S6.  —  Ed. 


136     SAUTER  v.  N.  Y.  CENTRAL  &  HUDSON  RIVER  R.  R.  CO.    [cHAP.  III. 

to  it  backward,  and  the  plaintiff  was  thrown  suddenly  forward,  his 
carpet-bag  striking  the  railing,  and  he  striking  the  carpet-bag.  This 
was  proved  to  be  sufficient  to  cause  the  hernia  of  which  he  died.  The 
circumstances  pointed  to  this  as  the  cause,  and  repelled  the  idea  of 
any  other.  True,  the  evidence  was  that  it  might  have  been  produced 
by  many  other  causes,  but  there  was  no  evidence  tending  to  prove 
that  it  was  produced  by  any  other.  On  the  contrary,  the  inference  was 
legitimate  that  it  was  not. 

It  is  claimed  that  the  injury  was  not  the  proximate  cause  of  death. 
The  deceased  had  what  the  surgeons  denominated  strangulated  hernia, 
an  injury  certain  to  produce  death,  unless  relieved.  Being  unable  to 
reduce  it  by  pressure,  an  operation  was  decided  upon  and  performed 
by  surgeons  of  conceded  competency  and  skill.  The  operation  is  a  very 
delicate  and  dangerous  one,  but  is  often  and  perhaps  generally  per- 
formed with  success.  In  this  case  the  post-mortem  examination  disclosed 
that  there  were  two  strictures,  only  one  of  which  had  been  cut,  and  that 
a  mistake  was  made  by  pressing  the  intestine  into  an  abnormal  cavity, 
between  the  peritoneum  and  pubic  bone,  produced  in  some  manner 
by  a  separation  of  the  peritoneum  from  the  bone,  instead  of  pressing 
it  into  the  abdomen.  There  was  a  difference  of  opinion  whether  the 
immediate  cause  of  death  was  by  the  inistake  in  pressing  the  intestine 
into  the  wrong  ca\^ity  or  by  the  natural  effect  of  the  second  stricture 
which  was  not  cut;  but  assuming  that  it  was  the  mistake,  which  is 
the  most  favorable  for  the  defendant,  is  the  principle  invoked  by  the 
learned  counsel  applicable?  I  think  not.  The  cases  cited  do  not  sus- 
tain the  position.  The  case  of  Patrick  v.  Commercial  Insurance  Com- 
pany, 11  J.  R.  14,  was  an  action  upon  a  policy  against  sea  risks. 
The  vessel  stranded,  but  before  she  could  be  got  off  she  was  forcibly 
seized  and  burned  by  a  public  enemy,  and  it  was  very  properly  held 
that  the  damage  was  from  the  capture,  and  not  the  stranding.  Levie 
V.  Janson,  12  East.,  655,  was  analagous  in  principle.  To  bring  a  case 
within  the  principle  claimed,  the  general  rule  is  that  the  actual  injury 
must  be  occasioned  by  the  intervention  of  some  responsible  third  party 
or  power.  (Wharton  on  Neg.,  §  134.)  I  do  not  think  that  the  mistake 
of  the  surgeon  can,  in  any  sense,  be  regarded  as  such.  The  employ- 
ment of  a  surgeon  was  proper,  and  may  be  regarded  as  a  natural 
consequence  of  the  act,  and  the  mistake  which  it  is  .evident  might 
be  made  by  the  most  skillful,  may  be  regarded  iof  the  same 
character.  In  Lyons  v.  The  Erie  Railway,  57  N.  Y.  489,  the  Com- 
mission of  Appeals  held,  if  one  who  is  injured  by  the  negligence 
of  another,  acts  in  good  faith  under  the  ad\'ice  of  a  competent 
physician,  even  if  it  is  erroneous,  he  may  recover,  and  that  the  error 
is  no  shield  to  the  wrongdoer.  The  rule  is  laid  down  in  Conmion- 
wealth  V.  Hackett,  2  Allen,  137,  that  one  who  has  wilfully  inflicted 
upon  another  a  dangerous  wound  from  which  death  ensued,  is  guilty 
of  murder  or  manslaughter,  as  the  case  may  be,  although,  through 


SECT.  II. J     SAUTER  V.  N,  Y.  CENTRAL  &  HUDSON  RIVER  R.  R.  CO.        137 

want  of  due  care  or  skill,  the  improper  treatment  of  surgeons  may 
have  contributed  to  the  result. 

Here  it  is  sought  to  shield  the  wrongdoer  because  the  deceased 
failed  to  procure  relief,  although  he  used  the  usual  and  best  available 
means  for  that  purpose.  He  would  have  died  Avnthout  an  operation; 
assuming  that  by  the  mistake  of  the  surgeon  the  operation  was  not  suc- 
cessful, can  it  be  justly  said,  in  the  first  place,  that  the  surgeon  and  not 
the  injury  killed  him;  and  in  the  second  place,  that  the  surgeon  is  to 
be  regarded  as  a  responsible  intervening  third  person,  within  the 
rule  referred  to?  There  is  no  authority  that  approaches  such  a  propo- 
sition. Hence  there  was  no  error  in  refusing  to  charge  that  if  death 
was  proximately  caused  by  pressing  the  intestine  into  the  abnormal 
caxnty,  the  plaintiff  cotild  not  recover.  The  court  had  charged  that  if 
the  hernia  was  not  the  proximate  cause  of  death  the  plaintiff  could  not 
recover,  nor  unless  it  was  caused  by  the  defendant.  The  court  also 
charged  that  if  death  was  produced  by  the  error,  ignorance,  blunder, 
or  maltreatment  of  the  surgeon,  the  plaintiff  could  not  recover.  The 
charge  was  quite  as  favorable  to  the  defendant  as  the  case  would 
warrant. 

Error  is  also  alleged  upon  the  refusal  of  the  court  to  charge  that  the 
plaintiff  could  not  recover,  unless  the  jury  found  that  the  injury 
would  be  reasonably  apprehended  by  a  prudent  man  as  the  result  of  the 
alleged  movement  of  the  cars.  The  court  declined  to  charge  other 
than  as  he  had  charged.  He  had  charged  that  if  after  the  train  was 
stopped  it  was  given  such  a  jolt  as  to  endanger  the  lives  of  passengers, 
the  act  would  be  wrongful.  The  sudden  jerking  of  a  train  backward 
while  passengers  are  rightfully  passing  out  of  the  cars,  is  evidently 
liable  to  produce  accidents,  and  under  such  circumstances  is  a  negligent 
act.  There  was  no  foundation,  therefore,  for  the  test  of  apprehended 
danger  by  a  prudent  man.  At  all  events,  the  charge  made  was  favor- 
able to  the  defendant  in  any  aspect  of  the  case.  The  Northamp- 
ton tables  were  properly  received.  (Schell  v.  Plumb,  55  N.  Y. 
592.)  The  probable  duration  of  the  deceased's  life  was  an  element 
in  estimating  damages,  and  being  so,  it  was  proper  to  give  this  evi- 
dence upon  the  question. 

The  judgment  must  he  affirmed. 
All  concur. 
Judgment  affirmed. 


138  COMMOmVEALTH    V.    HACKETT.  [cHAP.    III. 


COMMONWEALTH    v.   HACKETT. 

Supreme  Judicial  Coukt  of  Massachusetts.     1861. 

[Reported  2  All.  136.] 

IxDiCTMENT  for  iDurder.^ 

The  defendant  contended  that  there  was  evidence  to  sliow  that  the 
(v'ounds  of  the  deceased  were  unskilfiiU}'  and  improperU'  treated  by  the 
surgeons  who  attended  him,  and  requested  the  court  to  instruct  the  jur\' 
as  follows  :  "  1.  The  rule  that  the  death  must  happen  within  a  year  and 
a  day  is  one  of  limitation  onh',  and  does  not  change  the  burden  of 
proof,  or  release  the  government  from  the  duty  of  proving  a;ffirmativel3' 
that  the  deceased  died  of  the  wounds  alleged  in  the  indictment.  2.  It 
is  not  enough  to  satisfy  this  burden  for  the  government  to  prove  that 
without  the  wounds  the  deceased  would  not  have  died.  3.  If  the  death 
was  caused  by  the  improper  api)Ucations  or  improper  acts  of  the 
surgeons  in  dressing  the  wounds,  the  case  of  the  government  is  not 
made  out." 

The  court  instructed  the  jury  in  conformity  with  the  first  clause  of 
the  instructions  asked  for,  but  declined  to  give  the  others,  and  in  place 
thereof  instructed  them,  substantial!}',  that  the  burden  of  proof  was 
u[)on  the  government  to  prove  be3-ond  a  reasonable  doubt  that  the 
deceased  died  of  the  wounds  inflicted  by  the  defendant,  but  that  this 
general  rule  required  explanation  in  its  appHcation  to  certain  aspects 
of  the  present  case ;  that  a  person  who  has  inflicted  a  dangerous 
wound  with  a  deadl}' weapon  upon  the  person  of  another  cannot  escape 
punishment  by  proving  that  the  wound  was  aggravated  by  improper 
applications  or  unskilful  treatment  b}'  surgeons  ;  that  if,  in  the  present 
case,  the}' were  satisfied  that  the  wounds  inflicted  b\'  the  defendant  were 
improperly  and  unskilfully  treated  by  the  surgeons  in  attendance,  and 
that  such  treatment  hastened  or  contributed  to  the  death  of  the  de- 
ceased, the  defendant  was  not  for  this  reason  entitled  to  an  acquittal ; 
but  that  the  rule  of  law  was  that,  if  they  were  satisfied  beyond  a 
reasonable  doubt  that  the  defendant  inflicted  on  the  deceased  dangerous 
wounds  with  a  deadly  weapon,  and  that  these  wounds  were  unskilfully 
treated,  so  that  gangrene  and  fever  ensued,  and  the  deceased  died 
from  the  wounds  combined  with  the  maltreatment,  the  defendant  was 
guilt}'  of  murder  or  manslaughter  according  as  the  evidence  proved 
tlie  one  or  the  other ;  that,  if  they  were  satisfied  not  only  that  death 
would  not  have  ensued  but  for  the  wounds,  but  also  that  tlie  wounds 
were,  when  inflicted,  dangerous,  the  defendant  would  be  responsible, 
although  improper  and  unskilful  treatment  might  have  contributed  to 
the  death  ;  that  the  law  does  not  permit  a  person  who  has  used  a 
deadly  wea|)on,  and  with  it  inflicted  a  dangerous  wound  upon  another, 
to  attempt  to  apportion  his   own  wrongful  and  wicked  act,  and  divide 

1  Part  of  the  case,  which  discussed  the  admissibility  of  certaiu  evideace,  is  omitted 
—  Ed. 


SECT.    II.]  COMMONWEALTH    V.    HACKETT.  139 

the  responsibility  of  it,  by  speculating  upon  the  question  of  the  extent 
to  which  unskilful  treatment  by  a  surgeon  has  contributed  to  the  death 
of  the  person  injured  ;  but,  if  they  were  in  doubt  whether  tlie  wounds 
were  dangerous,  or  caused  or  contributed  to  the  death,  or  whether  the 
deceased  miglit  not  have  died  from  the  unskilful  treatment  alone,  then 
the  defendant  would  be  entitled  to  an  acquittal. 

The   defendant   was   found    guiltj'   of    manslaugjiter,    and    alleged 
exceptions. 

BiGELOw,  C.  J.  .  .  .  We  have  looked  with  care  into  the  authorities 
which  bear  on  the  correctness  of  the  instructions  given  to  the  jury,  relat- 
ing to  the  unskilful  or  improper  treatment  of  the  wounds  alleged  to  have 
been  inflicted  by  the  prisoner  upon  the  body  of  the  deceased.  We  find 
them  to  be  clear  and  uniform,  from  the  earliest  to  the  latest  decisions. 
In  one  of  the  first  reported  cases  it  is  said  that  "  though  a  wound  may 
be  cured,  yet  if  the  party  dieth  thereof,  it  is  murder."  The  King  v. 
Reading,  1  Keb.  17.  The  same  principle  is  stated  in  1  Kale  P.  C.  428, 
thus  :  "  If  a  man  give  another  a  stroke  which  it  may  be  is  not  in  itfeelf 
so  mortal  but  that  with  good  care  he  might  be  cured,  yet  if  he  die  of 
this  wound  within  a  year  and  a  day,  it  is  homicide  or  murder,  as  the 
case  is,  and  so  it  has  been  always  ruled."  "  If  a  man  receives  a  wound, 
which  is  not  in  itself  mortal,  but  either  for  want  of  helpful  applications, 
or  neglect  thereof,  it  turns  to  a  gangrene,  or  a  fever,  and  that  gangrene 
or  fever  be  the  immediate  cause  of  his  death,  yet,  this  is  murder  or 
manslaughter  in  him  that  gave  the  stroke  or  wound,  for  that  wound, 
though  it  were  not  the  immediate  cause  of  death,  3et,  if  it  were  the 
mediate  cause  thereof,  and  the  fever  or  gangrene  was  the  immediate 
cause  of  his  death,  yet  the  wound  was  the  cause  of  the  gangrene  or 
fever,  and  so  consequently  is  causa  causati.^'  In  Rew's  case,  as 
stated  in  1  East  P.  C.  c.  5,  §  113,  it  was  determined  tiiat  "though 
the  stroke  were  not  so  mortal  in  itself  but  that  with  good  care  and 
under  favorable  circumstances  the  party  might  have  recovered,  yet  if 
it  were  such  from  whence  danger  might  ensue,  and  the  party  neglected 
it,  or  applied  inefficacious  medicines,  whereby  the  wound  which  at  first 
was  not  mortal  in  itself  turned  to  a  gangrene,  or  produced  a  fever, 
whereof  he  died,  the  part3-  striking  shall  answer  for  it,  being  the 
mediate  cause  of  the  death."  J.  Kel.  26.  So,  in  a  more  recent  case, 
the  jury  were  instructed  that  if  the  defendant  wilfully  and  without 
justifiable  cause  inflicted  a  wound,  which  was  ultimatelj-  the  cause  of 
death,  it  made  no  difference  whether  the  wound  was  in  its  nature 
instantly  mortal,  or  whether  it  became  the  cause  of  death  by  reason 
of  the  deceased  not  having  adopted  the  best  mode  of  treatment.  The 
real  question  is,  was  the  wound  the  cause  of  death.  Regina  v.  Holland, 
2  M.  &  Rob.  351.  From  these  and  other  authorities,  the  well  estab- 
lished rule  of  the  commoi\law  would  seem  to  be,  that  if  the  wound  was 
a  dangerous  wound,  that  is,  calculated  to  endanger  or  destroy  life,  and 
death  ensued  therefrom,  it  is  sufficient  proof  of  the  offence  of  murder 
or  manslaughter ;  and  that  the  person  who  inflicted  it  is  responsible, 


140  COMMOXAVEALTH   V.    HACKETT.  [CHAP.    III. 

though  it  ma}'  appear  that  the  deceased  might  have  recovered  if  he  had 
taken  proper  care  of  himself,  or  submitted  to  a  surgical  operation,  or 
that  unskilful  or  improper  treatment  aggravated  the  wound  and  con- 
tributed to  the  death,  or  that  death  was  immediately  caused  bj'  a 
surgical  operation  rendered  necessarj-  by  the  condition  of  the  wound. 
1  Russell  on  Crimes  (7th  Amer.  ed.),  oOo  ;  Roscoe's  Crim.  Ev.  (3d  ed.) 
708,  706  ;  3  Greenl.  Ev.§  139  ;  Commonwealth  v.  Green,  1  Ashm.  289. 
Regina  v.  Haines,  2  Car.  &  Kirw.  368 ;  State  v.  Baker,  1  Jones  Law 
R.  (N.  C.)  267;  Commonwealth  v.  M'Pike,  3  Cush.  184.  The  princi- 
ple on  which  this  rule  is  founded  is  one  of  universal  application,  and 
lies  at  the  foundation  of  all  our  criminal  jurisprudence.  It  is,  that 
every  person  is  to  be  held  to  contemplate  and  to  be  responsible  for  the 
natural  consequences  of  his  own  acts.  If  a  person  inflicts  a  wound 
with  a  deadl}^  weapon  in  such  manner  as  to  put  life  in  jeopardy,  and 
death  follows  as  a  consequence  of  this  felonious  and  wicked  act,  it 
does  not  alter  its  nature  or  diminish  its  criminality  to  prove  that  other 
causes  cooperated  in  producing  the  fatal  result.  Indeed  it  may  be 
said  that  neglect  of  the  wound  or  its  unskilful  and  improper  treatment, 
which  were  of  themselves  consequences  of  the  criminal  act,  which 
might  naturally  follow  in  any  case,  must  in  law  be  deemed  to  have 
been  among  those  which  were  in  contemplation  of  the  guilty  party,  and 
for  which  he  is  to  be  held  responsible.  But  however  this  may  be,  it  is 
certain  that  the  rule  of  law,  as  stated  in  the  authorities  above  cited,  has 
its  foundation  in  a  wise  and  sound  polic}'.  A  different  doctrine  would 
tend  to  give  immunitj'  to  crime,  and  to  take  awav  from  human  life 
a  salutar}'  and  essential  safeguard.  Amid  the  conflicting  theories  of 
medical  men,  and  the  uncertainties  attendant  on  the  treatment  of 
bodily  ailments  and  injuries,  it  would  be  easy  in  man}'  cases  of  homi- 
cide to  raise  a  doubt  as  to  the  immediate  cause  of  death,  and  thereby 
to  open  a  wide  door  by  which  persons  guilt}-  of  the  highest  crime  might 
escape  conviction  and  punishment. 

The  instructions  to  the  jury  at  the  trial  of  this  case  were  in  strict 
conformity  with  the  rule  of  law  as  it  has  always  been  understood  and 
administered.  Indeed  the  learned  counsel  does  not  attempt  to  show 
that  it  has  ever  been  held  otherwise.  His  argument  on  this  point  is 
confined  to  the  signification  which  he  attributes  to  the  word  maltreat- 
ment. This  he  assumes  to  be  either  wilful  ill  treatment,  involving  bad 
faith,  of  the  wound  of  the  deceased,  or  such  gross  carelessness  in  its 
management  by  the  surgeons  as  would  amount  to  criminality.  But 
such  is  not  its  true  meaning.  Maltreatment  may  result  either  from 
ignorance,  neglect,  or  wilfulness.  It  is  synonymous  with  bad  treatment, 
and  does  not  imply,  necessarily,  that  the  conduct  of  the  surgeons,  in 
their  treatment  of  the  wounds  of  the  deceased,  was  either  wilfully  or 
grossly  careless.  Nor  was  it  used  in  any  such  narrow  or  restricted 
sense  in  the  instructions  given  to  tlie  jury.  On  the  contrary,  in  the 
connection  in  which  it  stands,  it  signifies  only  improper  or  unskilful 
treatment,  and  was  intended  to  apply  to  the  evidence  as  it  was 
developed  at  the  trial.  Exceptions  overruled. 


SECT.  II.]  PEOPLE  v.    COOK.  141 

PEOPLE  V.  COOK. 
Supreme  Court  of  Michigan.    1878. 

[Reported  39  Mich.  236.] 

Marston,  J.^  .  .  .  The  ninth  request  was  not  given.  This  request 
was  based  upon  a  theory  that  where  a  mortal  wound  has  been  given,  but 
the  death  is  actually  produced  by  morphine  administered  by  the  hand 
of  another,  there  must  be  an  acquittal.  The  State  v.  Scates,  5  Jones 
(N.  C),  420,  was  relied  upon  as  an  authority  in  support  of  this  prop- 
osition. In  that  case  the  jury  was  charged  that  if  one  person  inflicts  a 
mortal  wound,  and  before  the  assailed  person  dies,  another  person  kills 
him  by  an  independent  act,  the  former  is  guilty  of  murder,  and  this  was 
held  error. 

This  case  does  not,  however,  come  within  the  principle  of  that  case. 
Here  a  mortal  wound  was  given.  Physicians  were  called  in  who  pre- 
scribed for  and  treated  the  wounded  man.  Morphine  was  administered, 
and,  it  is  claimed,  in  such  unreasonably  large  quantities  that  it  caused 
death.  It  was  not  claimed  that  these  physicians  were  deficient  in 
medical  skill,  or  that  morphine  in  proper  quantities,  and  at  proper 
times,  sbould  not  have  been  administered,  or  that  the  deceased  could, 
under  any  treatment,  or  in  the  absence  of  all  treatment,  have  survived. 
Admitting  the  correctness  of  the  authority  relied  upon,  what  applica- 
tion can  such  a  rule  have  to  cases  like  the  present?  If  death  was 
actually  produced  by  morphine,  can  it  be  said  in  view  of  the  facts 
"that  another  person  killed  the  deceased  by  an  independent  act?" 
Here  morphine  was  administered  as  a  medicine  by  competent  and 
skilful  physicians  ;  it  was  a  proper  and  appropriate  medicine  to  be 
given.  Was  it  the  independent  act  of  the  physicians  who  prescribed, 
or  of  the  nurses  who  administered  the  morphine?  Was  it  the  mortal 
wound  likely  to  cause  death  at  any  moment,  or  an  undue  quantity  of 
medicine  unskilfully  but  honestly  given  to  alleviate  suffering,  which 
actually  caused  death?  Were  the  last  powders,  which  constituted  the 
overdose,  given  during  the  dying  man's  last  moments,  or  so  recenth* 
before  death  that  they  could  not  have  caused  it  or  materially  con- 
tributed thereto?  How,  under  the  conflicting  theories  and  uncertainties 
which  would  inevitably  arise  in  such  a  case,  could  it  be  said  which  w:is 
the  real  cause?  Could  it  be  made  to  appear  with  clearness  and  cer- 
tainty that  not  the  wound,  but  the  medicines  administered  were  the  sole 
cause  of  the  death?  There  are  authorities  which  hold  that  the  burthen 
of  so  proving  would  rest  upon  the  accused,  in  cases  where  the  wound 
was  not  a  mortal  one.  The  position  which  counsel  seeks  to  establish 
amounts  to  this :  that  if  a  competent  physician  and  surgeon  in  the 
treatment  of  a  mortal  wound  directly  causes  death,  although  hastened 

1  Only  so  much  of  the  opinion  as  discusses  the  question  of  causation  is  given.  —  Ed 


142  BUSH   V.    COMMON^VEALTH.  [cHAP.    III. 

bj  never  so  short  a  period,  the  assailant  is  excused,  even  although 
deatli  would  inevitably  have  resulted  from  the  wound  under  any  or  in 
the  absence  of  all  treatment.  Such  is  not  the  law.  Neglect  or  mis- 
treatment, and  beyond  such  this  (;ase  does  not  go,  will  not  excuse, 
-except  in  cases  where  doubt  exists  as  to  the  character  of  the  wound. 
Where  death  results  in  a  case  like  the  present,  it  can  in  no  proper  or 
legal  sense  be  said  to  be  the  independent  act  of  a  third  person.  In  a 
case  where  the  wound  is  not  mortal,  the  injured  person  may  recover, 
and  thus  no  homicide  have  been  committed.  If,  however,  death  do 
result,  the  accused  will  be  held  responsible,  unless  it  was  occasioned, 
not  b}'  the  wound,  but  by  grossh'  erroneous  medical  treatment.  But 
where  the  wound  is  a  mortal  one,  there  is  no  chance  for  the  injured 
person  to  recover,  and  therefore  the  reason  which  permits  the  showing 
of  death  from  medical  treatment  does  not  exist.  State  v.  Corbett,  1 
Jones  (Law),  267;  State  r.  Morphy,  33  la.  270:  11  Amer.  122,  uote 
and  cases  cited ;  Roscoe's  Crim.  Ev.  717. 


BUSH  V.  COMMONWEALTH. 

Court  of  Appeals  of  Kentucky.     1880. 

[Reported  78  Ky.  268.] 

HiNES,  J.^  .  .  .  The  following  instruction  is  also  objected  to,  to  wit : 
"  If  the  jury  believe  from  the  evidence,  be3'ond  a  reasonable  doubt,  that 
the  defendant,  John  Bush,  in  Fa3ette  county,  and  before  the  finding  of 
the  indictment,  wilfully  shut  Annie  Vanmeter  with  a  pistol,  and  that 
she  died  from  the  effects  of  the  wound  then  inflicted  upon  her,  whether 
said  wound  was  the  sole  cause  or  was  a  contributory  agency  in  pro- 
ducing death,  when  such  shooting  was  not  necessar}',  and  not  reason- 
ably believed  by  the  defendant  to  be  necessarv  for  his  own  protection 
from  immediate  death  or  great  bodilv  harm  then  threatening  him.  the 
jury  should  find  the  defendant  guilty  :  guilty  of  murder  if  the  killing 
were  also  done  with  malice  aforethought,  or  guilt3-of  manslaughter  if  the 
killing  were  done  in  sudden  heat  and  passion,  and  without  malice." 

It  is  proper  in  this  connection  to  state  that  the  evidence  was  such  as 
to  justify  the  jur}-  in  finding  that  the  wound  inflicted  b\'  the  shot  was 
neither  necessarily  nor  probably  mortal,  and  that  the  death  ensued,  not 
from  the  wound,  but  from  scarlet  fever,  negligentl}'  communicated  by 
the  attending  phvsician. 

As  said  in  Commonwealth  v.  Hackett  (2  Allen,  141),  the  rule  of  the 
common  law  would  seem  to  be,  that  if  the  w^ound  was  a  dangerous 
wound,  that  is,  calculated  to  endanger  or  destroy  life,  and  death  ensued 
therefrom,  it  is  sutticient  proof  of  murder  or  manslaughter;  and  that 

*  Only  so  much  of  the  opinion  as  discusses  the  question  of  causation  is  given.  —  Ed. 


SECT.    II.]  BUSH    V.    COMMONW^EALTH.  143 

the  person  who  inflicted  it  is  responsible,  though  it  may  appear  that 
the  deceased  niiglit  have  recovered  if  he  had  talven  proper  care  of  him- 
self, or  submitted  to  a  surgical  operation,  or  that  unsliilful  or  improper 
treatment  asjjravated  the  wound  and  contributed  to  tlie  death,  or  that 
death  was  immediately  caused  by  a  surgical  operation  rendered  neces- 
sary by  the  condition  of  the  wound.  Tlie  principle  on  which  this  rule 
is  founded  is  that  every  one  is  held  to  contemplate  and  to  be  responsi- 
ble for  the  natural  consequences  of  his  own  acts.  But  if  the  wound  is 
not  dangerous  in  itself  and  death  results  from  improper  treatment,  or 
from  disease  subsequently  contracted,  not  superinduced  by  or  resulting 
from  the  wound,  the  accused  is  not  guiltyt  (1  Hale's  P.  C.  428  ;  Par- 
sons V.  State,  21  Ala.  301.)  When  the  disease  is  a  consequence  of  the 
wound,  although  the  proximate  cause  of  the  death,  the  person  inflicting 
the  wound  is  guilty,  because  the  death  can  be  traced  as  a  result  natu- 
rally flowing  from  the  wound  and  coming  in  the  natural  order  of  things  ; 
but  when  there  is  a  supervening  cause,  not  naturally  intervening  b}' 
reason  of  the  wound  and  not  produced  by  any  necessity  created  by  the 
wound,  the  death  is  by  the  visitation  of  Providence  and  not  from  the 
act  of  the  party  inflicting  the  wound.  In  the  case  under  consideration, 
the  fever  was  not  the  natural  consequence  of  the  wound,  nor  was  it 
produced  by  any  necessity  created  by  the  infliction  of  the  wound.  It  did 
not  render  it  necessary  to  have  the  wound  treated  by  a  physician  just 
recovering  from  the  scarlet  fever,  even  if  it  be  conceded  that  medical 
treatment  was  necessary  at  all.  If  the  death  was  not  connected  with 
tiie  wound  in  the  regular  chain  of  causes  and  consequences,  there 
ought  not  to  be  any  responsibility.  If  a  new  and  wholly  independent 
instrumentalit}'  interposed  and  produced  death,  it  cannot  be  said  that 
the  wound  was  the  natural  or  proximate  cause  of  the  deatii.  (14 
Grattan,  601,  Livingston  v.  Commonwealth.)  This  view  of  the  law 
was  not  so  presented  to  the  jury  as  to  give  the  appellant  its  full  benefit. 
It  should  have  been  clearly  and  definitely  presented  to  the  jurv  that  if 
the}-  believed  from  the  evidence  that  death  would  not  have  resulted 
from  the  wound  but  for  the  intervention  of  the  disease,  the\'  should  not 
find  the  accused  guilt}-  of  murder  or  manslaughter,  but  that  the}-  might 
find  him  guilty  of  wilfully  and  maliciously  shooting  and  wounding  under 
section  2,  article  6,  chapter  29,  General  Statutes  ;  or  of  shooting  and 
wounding  in  sudden  affray,  or  in  sudden  heat  and  passion,  without 
malice,  under  section  1,  article  17,  chapter  29,  General  Statutes. 


144  THOMPSON  V.  LOUISVILLE  &  NASHVILLE  R.  R.  CO.     [cHAP.  III. 


THOMPSON  V.  LOUISVILLE  &  NASHVILLE  RAILROAD  CO. 
Supreme  Court  of  Alabama,  1890. 

[Reported  91  Ala.  496.] 

Coleman,  J.  The  suit  is  brought  to  recover  damages  for  injuries 
alleged  to  have  been  wrongfully  inflicted  by  the  defendant  on  J.  R. 
Thomas,  an  employee,  on  the  22d  day  of  September,  1889,  and  from 
which,  it  is  charged,  the  death  of  said  employee  resulted  on  the  29th 
September,  1889.  The  section  of  the  code  (section  2591)  under  which 
this  suit  is  brought  proA'ides  that  the  personal  representative  may 
sue  if  such  injury  "results"  in  the  death  of  the  servant  or  employee. 
The  section  so  often  construed  by  this  court  pro\ades  that  the  suit 
may  be  brought  by  the  representative  to  recover  damages  for  the  in- 
jury, whereby  the  death  was  "caused."  Code,  §2589.  "Cause"  is 
that  which  produces  an  effect.  "Result"  is  the  effect  of  one  or  more 
concurrent  causes.  The  same  principles  of  law  are  alike  applicable  in 
either  case.  The  testimony  of  skillful  physicians  tended  to  show  that 
the  injury  inflicted  was  mortal,  and  the  injured  party  would  have 
died  from  the  effects  of  the  injury  "in  a  short  time."  There  was  evi- 
dence also  tending  to  show  the  wounds  were  not  "necessarily  mortal." 
The  e\adence  showed  that  by  mistake  the  wife  of  the  deceased,  who  was 
his  nurse,  gave  to  him  internally  four  or  five  grains  of  corrosive  sub- 
limate, which  had  been  left  by  the  physician  to  be  used  as  a  wash, 
and  not  to  be  given  internally.  It  was  proven  that  the  poison  would 
have  caused  the  death  of  a  well  person,  and  it  was  in  evidence  that  the 
poison  was  the  immediate  cause  of  death.  The  testimony  of  the  phy- 
sicians further  tended  to  show  the  wound  was  of  such  a  character 
"that  it  may  have  hastened  the  death";  "may  have  caused  him  to 
die  sooner  from  the  effects  of  the  corrosive  sublimate  than  if  he  had 
not  received  the  wound";  "that  the  corrosive  sublimate  adminis- 
tered to  Thomas  would  have  produced  death  'quicker'  in  a  man  in 
Thomas'  condition  from  the  wounds  received  by  him,  than  in  a  well 
man."  Among  others,  the  court  charged  the  jury  that,  under  the  e\a- 
dence  in  this  case,  the  death  of  plaintiff's  intestate  must  have  resulted 
either  from  the  injury  he  received  or  from  the  poison  he  took.  The 
injury  and  poison  cannot  both  be  the  cause  of  his  death.  Further,  that 
his  death  could  not  he  the  result  of  the  injur^►%  and,  at  the  same  time, 
the  result  of  the  poison.  Further,  that  if  he  died  from  the  effects  of 
the  poison,  then  they  must  find  for  the  defendant,  although  his  death 
was  accelerated  by  reason  of  the  injury  received;  or  if  he  died  "sooner" 
from  the  effects  of  the  poison  than  he  would  have  died,  if  he  had  not 
been  injured. 


SECT.  II.]     THOMPSON  V.  LOUISVILLE  S  NASHVILLE  K.  R.  CO.  145 

In  the  case  of  Railroad  Co.  v.  Jones,  83  Ala.  376,  3  South.  Rep.  902, 
the  court  declared  that  although  Mrs.  Jones  had  pneumonia,  from 
which  she  would  ultimately  have  died,  yet,  if  the  injury  caused  by  the 
negligence  of  the  railroad,  under  the  rules  above  declared,  contributed 
and  hastened  her  death,  the  corporation  would  not  be  guiltless.  "  That 
the  railroad  would  not  be  exempt  from  liability  for  such  an  injury 
unless  her  death  was  solely  the  result  of  bad  health."  It  does  not  fol- 
low that,  because  a  man  cannot  die  but  once,  there  cannot  be  two  or 
more  concurrent,  cooperative,  and  efficient  causes  to  effect  the  one 
killing.  A  person  may  be  killed  by  "beating  and  star\ing."  There 
may  be  contributing  causes.  3  Greenl.  Ev.,  §  141.  If,  as  the  testi- 
mony tended  to  show,  the  injury  received  was  mortal,  and  caused  de- 
cedent to  die  "sooner"  or  "quicker"  from  the  effects  of  the  poison  than 
he  would  have  died  had  he  not  been  injured,  it  is  difficult  to  perceive 
how  the  poison  can  be  regarded  as  the  "sole"  cause  of  his  death  at  the 
time  it  occurred.  If  he  would  have  lived  longer  without  the  injury 
than  with  the  injury,  the  injury  necessarily  contributed  to  and  ac- 
celerated his  death,  and  was  a  part  of  the  cause,  causing  death  at  the 
time  it  occurred.  It  is  not  intended  by  the  court  to  assert  the  doctrine 
that,  if  a  party  inflict  an  injury  not  mortal,  and,  by  the  intervention 
of  other  causes,  death  results,  the  party  inflicting  the  injury  in  all  cases 
shall  be  held  responsible  for  the  death.  The  first  cause  may  or  may  not 
be  regarded  as  the  proximate  cause  of  a  result  according  to  the  facts  of 
the  case.  Bowles  v.  State,  58  Ala.  338,  and  authorities  cited;  2  Bish. 
Crim.  Law,  §  668;  1  Shear.  &  R.  Neg.,  §  125;  Insurance  Co.  r.  Tweed, 
7  Wall.  44;  Railroad  Co.  v.  Kellogg,  94  U.  S.  469;  and  many  others. 
Railroad  Co.  v.  Buck,  49  Amer.  Rep.  170;  Railway  Co.  v.  Kemp,  48 
Amer.  Rep.  136;  Scheffer  v.  Railroad  Co.,  105  U.  k  249.  The  court 
ought  not  to  have  charged  the  jury,  as  a  conclusion  of  law,  that  death 
did  not  and  could  not  have  resulted  from  both  causes,  the  injury  and 
the  poison,  in  the  face  of  the  testimony  of  the  physicians  examined 
as  witnesses  to  the  effect  that  the  death  of  the  decedent  was  "  acceler- 
ated" by  the  injury,  or  that  the  injury  may  have  caused  him  to  die 
"quicker"  than  he  would  have  died  without  the  injury.  The  charges 
of  the  court  assert  the  further  proposition  that,  though  the  injury 
inflicted  was  fatal,  yet  if,  before  death,  the  poison  was  given,  and  was 
sufficient  to  cause  death,  and  was  the  immediate  cause  of  death,  the 
poison  must  be  regarded  as  the  proximate  cause,  and  the  jury  must  find 
for  the  defendant.  To  support  this  charge,  the  following  proposition 
of  law  is  cited,  and  many  authorities  and  illustrations  of  the  principle 
are'given :  "  That  if  a  new  force  or  power  intervenes,  sufficient  of  itself 
to  stand  as  the  cause  of  the  misfortune,  the  other  must  be  considered 
as  too  remote."  We  concede  the  correctness  of  the  proposition, 
and  its  general  acceptance,  but  do  not  concede  its  applicability  to  a 
case  like  the  present.  When  the  evidence  shows  that  the  result  was 
not  the  probable  or  legitimate  result  of  the  first  cause,  and  might  not 


146  THOMiPSON  V.  LOUISVILLE  A:  NASHVILLE  R.   H.  CO.     [CHAP.  III. 

have  resulted,  but  for  some  new,  intervening  cause,  or  this  is  a  matter  of 
contest,  in  such  cases,  the  intervening  cause  may  be  regarded  as  the 
proximate  cause,  and  the  first  as  too  remote;  but  we  have  been  cited 
to  no  authority  in  a  suit  for  the  recovery  of  damages,  where  it  was 
shown  that,  if  the  "result"  was  the  necessary  and  inevitable  effect 
of  a  first  cause,  and  a  new  independent  force  intervened  sufficient  of 
itself  to  produce  the  effect,  and  only  hastened  the  result,  the  first  cause 
was  held  to  be  too  remote.  In  such  cases  both  causes  necessarily  con- 
tribute to  the  result.  The  difference  may  be  illustrated  in  the  well- 
kno-vvm  case  of  the  squib,  cited  by  counsel.  Scott  v.  Shepherd,  2  W. 
Bl.  892.  If  the  person  who  first  threw  the  squib  had  thrown  it  in  a  place 
where  its  explosion  would  hare  been  harmless,  and  someone,  with- 
out reason  or  excuse,  had  picked  it  up,  and  started  it  again,  with  the 
injurious  results  that  followed  its  explosion,  this  would  have  presented 
a  case  where  the  new  and  intervening  cause  would  have  been  held  tlie 
proximate  cause,  and  sufficient  to  stand  for  the  nusfortune.  A  better 
illustration,  and  more  applicable,  is  that  of  the  chain.  "An  article 
at  the  end  of  a  chain  may  be  moved  by  a  force  applied  at  the  other 
end,  that  force  being  the  proximate  cause."  Railway  Co.  v.  Kellogg, 
94  U.  S.  474.  Suppose  the  force  at  the  other  end  is  not  sufficient  to 
move  the  article,  and  a  new,  independent,  intervening  force  is  applied, 
which  effects  a  removal,  the  new  force  will  be  held  the  proximate  cause. 
But  if  the  original  force  itself  is  sufficient  to  move  the  article,  and  wall 
surely  move  it,  and  a  new,  independent  force  intervenes,  sufficient  of 
itself  to  move  the  article,  and  which  in  consequence  of  the  first  force, 
accelerates  or  hastens  the  movement  of  the  article,  the  new  force 
does  not  "solely"  or  "alone"  produce  the  movement,  but  the  first 
force  is  concurrent  and  cooperates  with  the  new  force,  and  is  a  suffi- 
cient cause.  If  two  persons  WTongfully  block  up  a  street  so  that  one  is 
injured  in  attempting  to  pass,  neither  of  the  culpable  parties  can  excuse 
himself  by  showing  the  wrong  of  the  other,  for  the  injury  is  the  natural 
and  proximate  result  of  his  own  act.  Cooley,  Torts,  p.  79.  If  a  wound 
is  inflicted,  not  dangerous  of  itself,  and  death  was  e\'idently  occasioned 
by  grossly  erroneous  treatment,  the  original  author  will  not  be  account- 
able; but,  if  the  wound  was  mortal,  the  person  who  inflicted  it  cannot 
shelter  liimself  under  the  plea  of  erroneous  treatment.  1  Hale,  P. 
C,  428;  1  East.,  P.  C,  344,  §  113;  Parson  v.  State,  21  Ala.  301.  So,  in 
this  case,  if  the  injury  had  not  been  mortal,  the  poison  would  have 
been  regarded  as  the  proximate  cause,  according  to  the  facts  of  the 
case,  governed  by  other  principles  of  law.  See  Bowles  v.  State, 
58  Ala.  335,  and  authorities  cited,  supra.  But,  if  the  wound  was  mor- 
tal, the  person  who  inflicted  it  cannot  shelter  himself  under  the  plea 
of  a  new,  intervening  cause,  if  it  be  shown  that  the  injury  caused  death 
to  luippen  "sooner"  than  it  would  ha^'e  happened  without  the  injury. 
If  the  original  wrong  becomes  injurious  only  in  consequence  of  some 
distinct  wrongful   act  or  omission   by   another,   the  injury  shall   be 


SECT.    II.]  ECKERT    l\    LONG    ISLAND    RAILROAD    CO.  147 

imputed  to  the  last'^vTong.  "  But  if  the  original  act  was  wrongful,  and 
would  naturally,  according  to  the  ordinary  course  of  events,  prove  in- 
jurious to  some  other  person,  and  does  actually  result  in  injury,  through 
the  intervention  of  causes  which  are  not  wrongful,  the  injury  shall  be 
referred  to  the  wrongful  cause."  If  damage  has  resulted  directly 
from  concurrent  wrongful  acts  of  two  persons,  each  of  these  acts  may 
be  counted  on  as  the  proximate  cause,  and  the  parties  held  responsible 
jointly  or  severally  for  the  injury.  Cooley,  Torts,  pp.  68,  70,  78.  These 
several  principles  of  law  fully  illustrate  the  distinction  to  be  observed, 
and  the  rules  to  govern  in  the  present  case.  The  principles  of  law  de- 
clared in  the  following  cases,  carried  out  to  their  legitimate  conclusions, 
tend  to  sustain  the  views  here  stated.  Sauter  r.  Railroad  Co.,  66  N.  Y. 
50;  Railroad  Co.  v.  Buck,  49  Amer.  Rep.  168;  Beauchamp  v.  Mining  Co., 
50  Mich.  163,  15  N.  W.  Rep.  65.  The  measure  of  proof  required  by  the 
use  of  the  words  "any  doubt"  in  charge  No.  17  is  too  high,  and,  al- 
though followed  by  explanatory  or  qualif^-ing  words,  the  use  of  the 
word  "proper"  in  the  explanatory  clause  is  misleading.  A  "reasonable 
conviction"  is  what  the  law  requires.  Railroad  Co.  v.  Jones,  83  Ala. 
376,  3  South.  Rep.  902;  Wilkinson  v.  Searcy,  76  Ala.  182.  Exemplary 
,damages  are  not  recoverable  in  this  action.  See  Railroad  Co.  v.  Orr, 
ante,  360  (at  this  term).  The  complaint,  as  amended,  was  sufficient. 
Reversed  and  remanded. 


ECKERT  V.   LONG  ISLAND  RAILROAD  CO. 
Court  of  Appeals  of  New  York,  1871. 

[Reported  43  N.   Y.  .502.] 

Grover,  C.  J.  The  important  question  in  this  case  arises  upon  the 
exception  taken  by  the  defendant's  counsel  to  the  denial  of  his  motion 
for  a  non-suit,  made  upon  the  ground  that  the  negligence  of  the  plain- 
tiff's intestate  contributed  to  the  injury  that  caused  his  death.  The 
evidence  showed  that  the  train  was  approaching  in  plain  view  of  the 
deceased,  and  had  he  for  his  own  purposes  attempted  to  cross  the 
track,  or  with  a  view  to  save  property  placed  himself  voluntarily  in  a 
position  where  he  might  have  received  an  injury  from  a  collision  wath 
the  train,  his  conduct  would  have  been  grossly  negligent,  and  no 
recovery  could  have  been  had  for  such  injury.     But  the  evidence  fur- 


148  ECKERT   V.    LONG   ISLAND    RAILROAD    CO.  [cHAP.    III. 

ther  showed  that  there  was  a  small  child  upon  the  track,  who,  if  not 
rescued,  must  have  been  inevitably  crushed  by  the  rapidly  approaching 
train.  This  the  deceased  saw,  and  he  owed  a  duty  of  imperfect  obli- 
gation to  this  child  to  rescue  it  from  its  extreme  peril,  if  he  could 
do  so  without  incurring  great  danger  to  himself.  Negligence  implies 
some  act  of  commission  or  omission  wrongful  in  itself.  Under  the  cir- 
cumstances in  which  the  deceased  was  placed,  it  was  not  wrongful 
in  him  to  make  every  effort  in  his  power  to  rescue  the  child,  compatible 
with  a  reasonable  regard  for  his  own  safety.  It  was  his  duty  to  ex- 
ercise his  judgment  as  to  whether  he  could  probably  save  the  child 
without  serious  injury  to  himself.  If,  from  the  appearances,  he  be- 
lieved that  he  could,  it  was  not  negligence  to  make  an  attempt  so  to  do, 
although  believing  that  possibly  he  might  fail  and  receive  an  injury 
himself.  He  had  no  time  for  deliberation.  He  must  act  instantly,  if 
at  all,  as  a  moment's  delay  would  have  been  fatal  to  the  child.  The 
law  has  so  high  a  regard  for  human  life  that  it  will  not  impute  negli- 
gence to  an  effort  to  preserve  it,  unless  made  under  such  circumstances 
as  to  constitute  rashness  in  the  judgment  of  prudent  persons.  For  a 
person  engaged  in  his  ordinary  affairs,  or  in  the  mere  protection  of 
property,  knowingly  and  voluntarily  to  place  himself  in  a  position, 
where  he  is  liable  to  receive  a  serious  injury,  is  negligence,  which  will 
preclude  a  recovery  for  an  injury  so  received;  but  when  the  exposure 
is  for  the  purpose  of  saving  life,  it  is  not  wrongful,  and  therefore  not 
negligent  unless  such  as  to  be  regarded  either  rash  or  reckless.  The 
jury  were  warranted  in  finding  the  deceased  free  from  negligence  under 
the  rule  as  above  stated.  The  motion  for  a  non-suit  was,  therefore, 
properly  denied.  That  the  jury  were  warranted  in  finding  the  defend- 
ant guilty  of  negligence  in  ininning  the  train  in  the  manner  it  was  run- 
ning, requires  no  discussion.  None  of  the  exceptions  taken  to  the 
charge  as  given,  or  to  the  refusals  to  charge  as  requested,  affect  the 
right  of  recovery.  Upon  the  principle  above  stated,  the  judgment 
appealed  from  must  be  affirmed  with  costs. ^ 

Church,  C.  J.,  Peckham  and  Rapallo,  JJ.,  concur. 

Allen  and  Folger,  JJ.,  dissented. 

»  See  also  Corbin  v.  Philadelphia,  195  Pa.  AQl,  45  Atl.  1070.  — Ed. 


SECT.  II.]  TURNER  I'.  PAGE.  '  149 


TURNER  V.  PAGE. 

Supreme  Judicial  Court  of  Massachusetts,  1904. 
[Reported  186  Mass.  600.] 

Two  ACTIONS  OF  TORT,  one  by  a  married  woman  for  personal  injuries, 
and  the  other  by  her  husband  for  loss  of  consortium  and  expenses,  and 
for  injuries  to  the  buggy  in  which  the  plaintiff  in  the  first  case  was 
sitting  when  the  accident  occurred,  alleged  to  have  been  caused  by 
the  negligence  of  the  defendant's  servant.    Writs  dated  May  25,  1903. 

At  the  trial  in  the  Superior  Court  before  Gaskill,  J.,  it  appeared  that 
the  plaintiff  in  the  second  case  had  gone  into  a  bank  on  Central  Street 
in  Gardner,  leaving  his  wife  sitting  in  the  buggy,  when  a  pair  of  horses, 
attached  to  a  tip  cart  belonging  to  the  defendant  and  without  a  driver, 
ran  into  the  buggy,  the  pole  of  the  tip  cart  breaking  the  back  of  the 
buggy  and  throwing  out  the  plaintiff  in  the  first  case;  that  the  driver 
of  the  tip  cart  had  left  his  horses  standing  eight  or  ten  feet  from  a 
railroad  track  while  he  went  back  about  six  or  eight  feet  to  pick  up  a 
part  of  his  load  of  stove  wood  which  had  dropped  from  the  cart;  that 
there  was  a  switching  engine  shifting  back  and  forth  over  the  crossing, 
puffing  and  blowing;  that  the  horses  suddenly  started  and  ran,  the  driver 
running  after  them  in  vain;  that  one  Buifum  tried  to  stop  the  horses 
by  standing  in  front  of  them  and  holding  up  a  wooden  rake  which  he 
had  in  his  hand;  that  when  the  horses  came  upon  him  he  jumped 
aside  hitting  or  touching  the  head  of  one  of  them  with  the  rake; 
and  that  the  horses  somewhat  changed  their  course  and  ran  into 
the  buggy  standing  by  the  sidewalk  as  above  described. 

At  the  close  of  the  evidence  the  defendant  asked  the  judge  to  make 
the  following  rulings : 

"1.  Upon  all  the  evidence,  the  plaintiff  is  not  entitled  to  recover. 

"2.  There  is  no  sufficient  e\ddence  of  negligence  on  the  part  of  the 
defendant. 

"3.  There  is  no  sufficient  evidence  of  negligence  on  the  part  of  the 
driver  of  the  horses  which  ran  away  to  warrant  a  recovery. 

"4.  If  the  horses  which  ran  into  the  plaintiff  would  not  have  so 
collided  and  the  injuries  would  not  have  occurred,  except  for  the  in- 
tervening attempt  of  Buffum  to  stop  the  horses,  coupled  with  the 
blow  with  the  rake  over  the  head  of  the  nigh  horse,  then  the  plaintiff 
cannot  recover." 


150  BLOOM    I'.    FKAXKLIX    LIFE    IXSURANCE   CO.       [CIL\P.    III. 

LoRiNG,  J.'  The  difficulty  with  the  defendant's  argument  .  .  . 
in  support  of  his  exception  to  the  refusal  to  give  the  fourth  ruling  asked 
for  lies  in  the  assumption  that  the  persons  who  attempt  to  stop  run- 
away horses  will  in  fact  act  as  the  typical  prudent  man  would  act. 
We  are  of  opinion  on  the  contrary  that  among  the  natural  and  probable 
consequences  of  negligently  letting  a  pair  of  horses  run  away  it  is 
competent  to  find  that  they  will  swerve  to  one  side  or  the  other  on 
account  of  the  acts  of  persons  who  try  to  stop  them  in  a  way  which 
would  not  have  been  adopted  by  a  prudent  man,  including  waxing  a 
rake  and  hitting  one  of  the  horses  over  the  head  with  it.  The  case 
comes  within  Lane  v.  Atlantic  Works,  111  Mass.  136;  Koplan  v.  Boston 
Gas  Light  Co.,  177  Mass.  15;  Boston  W^oven  Hose  &  Rubber  Co.  v. 
Kendall,  178  Mass.  232;  Murray  i\  Boston  Ice  Co.  180  Mass.  165; 
see  also  Clifford  v.  Atlantic  Cotton  Mills,  146  Mass.  47,  48  (where  the 
earlier  cases  are  collected);  and  does  not  come  within  Stone  r.  Boston 
&  Albany  Railroad,  171  Mass.  536;  Glynn  r.  Central  Railroad,  175  Mass. 
510;  Glassey  r.  Worcester  Consolidated  Street  Railway,  185  Mass.  315. 
See  also  Clifford  v.  Atlantic  Cotton  Mills,  146  Mass.  47,  49. 

Exceptions  overruled. 


BLOOM   r.   FRAxXKLIN   LIFE   IXSURANCE  CO. 
Supreme  Court  of  Indiana,  1884. 

[Reported  97  Ind.  478] 

Elliott,  C.  J.  The  policy  of  insurance  upon  which  the  appellant's 
complaint  is  founded  contains  a  proxision  that  if  the  assured  shall  die 
by  reason  of  intemperance  from  the  use  of  intoxicating  liquors,  or  in 
the  known  xnolation  of  the  laws  of  the  States  or  of  the  L'nited  States, 
the  policy  shall  be  void.  The  answer  of  the  appellee,  after  setting  forth 
the  proxasion  of  the  policy,  proceeds  as  follows:  "And  this  defendant 
avers  that  the  said  August  Bloom,  the  assured,  came  to  his  death  in  the 
following  manner,  to  wit:  On  or  about  the  29th  day  of  December,  1881, 
the  said  August  Bloom,  while  in  a  state  of  intoxication  from  the  use 
of  intoxicating  liquors,  did  commit  an  assault  and  battery  upon  one 
WiUielmina  Bloom,  the  wife  of  his  brother,  Albert  Bloom,  at  the  town 
of  Aurora,  and  State  of  Indiana,  and  while  thus  engaged  in  perpetrating 
said  assault  and  battery,  and  while  xiolently  beating,  bruising,  choking, 
and  maltreating  her,  the  said  wife  of  liis  brother,  he,  the  said  August, 

^  Part  of  the  opinion  is  omitted. —  Ed. 


\ 

SECT.    II.]  BLOOM    V.    FRANKLIN    LIFE    INSUIL\NCE   CO.  151 

being  at  the  time  in  a  state  of  intoxication,  Iiis  brother,  the  said  Albert, 
did  then  and  there,  for  the  purpose  of  lawfully  defending  his  wife  against 
said  assault  and  battery,  strike  the  said  August  Bloom  upon  the 
head  with  a  jack  plane,  or  some  other  wooden  instrument,  thereby  frac- 
turing the  skull  of  him,  the  said  August,  and  causing  his  death  within  a 
few  hours  thereafter." 

There  can  be  no  question  as  to  the  force  and  validity  of  the  provision 
of  the  policy  declaring  it  to  be  of  no  effect  in  the  event  that  the  assured 
shall  come  to  his  death  from  the  effects  of  intemperance,  or  while 
engaged  in  wilful  violation  of  the  law.  We  do  not,  indeed,  understand 
the  appellant  as  insisting  upon  the  invalidity  of  this  provision,  but  as 
asserting  that  the  facts  stated  do  not  show  that  the  assured  died  from 
the  effects  of  intemperance,  or  that  he  met  his  death  while  engaged  in 
knowingly  violating  the  law.^ 

Whether  the  violation  of  the  law  was  the  proximate  cause  of  death, 
and  whether  it  was  an  act  increasing  the  risk,  must  in  general  be  de- 
termined from  the  facts  of  the  particular  case.  There  must  in  all 
cases,  whether  the  law  violated  be  a  criminal  or  a  civil  one,  be  some 
causative  connection  between  the  act  which  constituted  the  violation 
of  law  and  the  death  of  the  assured.  A  man  engaged  in  uttering  coun- 
terfeit money  might  meet  his  death  while  so  engaged,  and  yet  there 
might  be  circumstances  which  would  destroy  the  causal  connection 
between  the  death  and  the  liolation  of  law,  and  in  such  a  case  it  is 
clear  that  the  company  would  not  be  relieved  from  liability.  On  the 
other  hand,  an  assured  inight  bring  on  his  death  while  engaged  in  the 
\aolation  of  a  civil  law,  as,  for  instance,  in  the  case  of  an  attempt 
to  force  an  entrance  into  a  man's  house  for  the  purpose  of  arresting 
him  on  ci\'il  process.  Another  illustration  may  be  found  in  the  case 
of  a  railway  engineer  who,  in  violation  of  law,  neglects  to  sound  signals 
and  brings  on  a  collision  in  which  he  perishes,  and  a  hundred  examples 
are  supplied  in  cases  of  collisions  at  sea  or  on  na\-igable  streams,  brought 
about  by  a  ^dolation  of  maritime  laws.  It  would  not  be  difficult  to 
multiply  examples  pro\'ing  that  the  rule  must  be  that  the  known  \'\o- 
lation  of  a  ix)sitive  law  relieves  the  company  where  the  act  constituting 
the  violation  is  the  proximate  cause  of  death,  whether  the  positive 
law  violated  be  a  ci\'il  or  a  criininal  one. 

The  act  of  the  assured  in  this  case  was  the  proximate  cause  of  his 
death  -wnthin  the  meaning  of  the  law.  A  man  who  makes  a  ^^olent 
assault  uix)n  a  woman  puts  his  own  person  in  danger,  for  a  father,  a 
husband,  or  a  child  may  interfere  to  protect  the  assailed  woman,  and 
may  overcome  the  assailant  by  force.  Strangers  not  onl}-  may  inter- 
fere to  protect  the  person  xiolently  assaulted,  but  are,  in  strict  law, 
under  a  duty  to  interfere.  The  natural  result  of  such  an  \llegal  act  as 
that  of  the  assured,  therefore,  was  to  bring  his  person  into  danger, 
and  as  death  resulted  his  own  act  was  the  proximate  cause.     It  may 

'  Part  of  the  opinion  is  omitted.  —  Ed.  \ 


152  BLOOxM    V.    FRANKLIN    LIFE    INSURANCE   CO.       [CHAP.    III. 

well  be  doubted  whether  an  assured  who  \aolently  assaults  another  does 
not  cause  a  forfeiture,  even  though  the  rescuer  uses  excessive  force; 
but  that  point  we  need  not  decide,  for  the  interference  in  this  instance 
was  a  lawful  one.  While  the  unlawful  act  of  the  assured  must  tend  in 
the  natural  line  of  causation  to  his  death,  in  order  to  work  a  forfeiture, 
it  is  not  necessary  that  the  act  should  be  the  direct  cause,  nor  that  the 
precise  consequences  which  actually  followed  could  have  been  fore- 
seen. It  is  enough  if  the  act  is  unlawful  in  itself,  and  the  consequences 
flowing  from  it  are  such  as  might  have  been  reasonably  expected  to 
happen,  for  in  such  a  case  the  ultimate  result  is  traced  back  to  the 
original  proximate  cause.  Terre  Haute,  etc.,  R.  R.  Co.  v.  Buck,  96 
Ind.  346;  Cincinnati,  etc.,  R.  R.  Co.  v.  Eaton,  94  Ind.  474;  Dunlap 
V.  Wagner,  85  Ind.  529  (44  Am.  R.  42);  Binford  v.  Johnston,  82  Ind. 
426  (42  Am.  R.  508);  Billman  v.  Indianapohs,  etc.,  R.  R.  Co.,  76  Ind. 
166;  S.  C.  40  Am.  R.  230.  In  the  case  [of  Cluflf  v.  Mutual,  etc.,  Co., 
supra,  the  decision  was,  that  where  the  assured  made  an  assault  upon 
another,  and  the  person  assaulted  killed  him,  the  policy  was  forfeited. 
The  same  general  doctrine  was  maintained  in  Bradley  v.  Mutual,  etc., 
Ins.  Co.,  supra,  but  it  was  held  that  where  there  was  any  conflict  of 
e\'idence,  the  question  of  whether  the  death  was  the  natural  result 
of  the  WTongful  act  must  be  left  to  the  jury.  In  the  case  of  Insurance 
Co.  V.  Seaver,  19  Wall.  531,  the  assured  was  dri\'ing  in  a  race,  a  collision 
took  place,  he  leaped  from  his  sulky  and  was  killed,  and  the  court 
held  that  death  was  proximately  caused  by  the  unlawful  act  of  racing. 
The  subject  received  consideration  in  Miller  v.  Mutual  Benefit  Ins. 
Co.,  34  Iowa,  222,  where  the  assured,  while  suffering  from  a  fit  of  de- 
lirium trerhens,  escaped  from  his  keepers,  ran  out  into  the  street  in 
inclement  weather,  and,  by  the  exposure,  brought  on  another  form  of 
disease  which  was  the  immediate  cause  of  death.  The  court  held  that 
the  proximate  cause  of  death  was  the  excessive  use  of  intoxicating  liquor. 
But  there  is  really  no  reason  for  endeavoring  to  find  insurance  cases, 
for  the  fundamental  principle  must  be  the  same  wh«^ther  the  contract 
is  one  of  insurance  or  an  ordinary  commercial  agreement.  The  funda- 
mental principle  is  as  old  as  the  "Squib  Case"  on  the  ci\'il  side  of  the 
common  law,  and  on  the  criminal  side  as  old  at  least  as  the  time  of 
Sir  Matthew  Hale.  1  Hale,  P.  C,  428;  1  Hawk.,  P.  C,  93;  Kelley  v. 
State,  53  Ind.  311;  Harvey  v.  State,  40  Ind.  516;  Terre  Haute,  etc., 
R.  R.  Co.  i\  Buck,  96  Ind.  346,  auth.  p.  350. 

Courts  cannot  be  ignorant  of  the  nature  of  men,  and  must  attribute 
to  them  the  ordinary  passions  and  weaknesses  inherent  in  human  nature. 
It  has  been  expressly  adjudged  that  courts  may  presume  that  domestic 
animals  Avill  act  in  conformity  to  their  usual  propensities  and  habits,  and 
surely  there  is  stronger  reason  for  extending  this  principle  to  beings 
of  intelligence,  reason,  and  affections.  Wharton  Neg.,  sections  100,  107; 
Billman  v.  Indianapolis,  etc.,  R.  R.  Co.,  supra.  It  has,  indeed,  been 
laid  down  by  respectable  authority  that  notice  will  be  taken  of  the 


SECT.    II.]  BLOOM   V.    FRANKLIN    LIFE    INSURANCE   CO.  153 

habits  of  men  acting  in  masses,  and  if  this  be  true,  it  must  also  be  true 
that  notice  w-ill  be  taken  of  what  an  ordinary  man  would  likely  do 
under  a  known  state  of  aiTairs.  Wharton  Neg.,  section  108.  These 
considerations  lead  to  the  conclusion  that  a  man  who  beats  and  mal- 
treats another's  wafe  may  reasonably  expect  the  husband  to  defend 
her  ^\^thout  being  careful  to  select  the  means  of  defense,  or  to  nicely 
weigh  the  degree  of  force.  To  expect  a  husband  to  act  coolly  and  ^\dth 
careful  circumspection  in  such  a  case  is  to  expect  an  um-easonable  thing. 
The  probability  is  that  the  husband  will  in  such  a  case  use  force,  and  this 
makes  it  probable  that  the  one  who  assaults  the  wife  will  encounter 
force  at  the  hands  of  the  husband,  and  what  is  probable  is,  in  legal 
contemplation,  to  be  expected.  Billman  v.  Indianapolis,  etc.,  R.  R. 
Co.,  supra,  and  authorities  cited.  If,  therefore,  an  assured  does  assault 
another's  wife,  he  does  an  unla^vful  thing  which  he  must  expect  will 
bring  upon  him  \iolence  from  the  husband,  and  if  this  force  leads  to 
death,  then  the  proximate  cause  of  death  is  the  unlawful  act  which  pro- 
voked the  use  of  \iolence. 

The  \iolation  must  be  a  known  one,  and  w^e  are  inclined  to  think 
that  the  law^  \iolated  must  be  a  knowTi  one,  that  is,  must  be  one  of 
which  the  violator  has,  or  should  have,  actual  knowledge.  But  there 
are  many  things  of  which  no  man  can  be  ignorant,  and  among  the 
things  of  wdiich  no  one  can  be  ignorant  is,  that  it  is  against  the  law  to 
commit  murder,  to  steal,  or  to  \iolently  beat  another.  We  cannot 
doubt  that  the  beating  of  Mrs.  Bloom  was  an  act  knowTi  by  the  assured 
to  be  a  violation  of  law. 

The  fact  that  the  assured  was  intoxicated  when  he  committed  the 
assault  and  battery  upon  his  brother's  wife  does  not  change  the  law. 
Drunkenness  is  no  excuse  for  crime.  Goodwin  v.  State,  96  Ind.  550, 
and  authorities  cited.  A  man  who  voluntarily  makes  himself  drunk  is  in 
a  measure  responsible  for  his  own  irresponsibility.  But,  W'ai\ing  this 
consideration,  the  degi'ee  of  intoxication  does  not  appear  to  have 
affected  the  mental  capacity  of  the  assured,  and  the  presumption  here 
is,  as  in  all  cases,  that  the  mental  condition  was  a  normal  one. 

There  is  no  force  in  the  proposition  that  the  assured  did  not  lose  his 
life  in  a  known  \iolation  of  law,  but  in  consequence  of  the  \iolation. 
The  cause  of  the  cause  is  in  law  sufficient,  and  the  cause  of  the  cause  of 
death  was  the  blow"  given  wiiile  the  assured  was  in  the  act  of  \iolating 
the  law,  and  it  is  not  material  whether  death  did  or  did  not  imjnechately 
ensue.    Terre  Haute,  etc.,  R.  R.  Co.  v.  Buck,  supra. 

What  we  have  said  disposes  of  all  the  questions  in  the  case,  and 
it  is  not  necessary  to  examine  the  special  finding. 

Judgment  affirmed. 


154  COMMONW'EALTU    V.    a\i\IPBELL,  [ciLA.P.  III. 


COMMONWEALTH    v.    CAMPBELL. 

SuPBEME  Judicial  Court  of  Massachusetts.     1863. 

[Reported  7  All.  541.] 

Indictment  for  murder,  b}'  shooting  William  Currier  on  the  14th  of 
Jul}',  1863.  The  trial  took  place  in  December,  1863,  before  Bigelow, 
C.  J.,  and  Metcalf,  Mekkick,  and  Hoak,  JJ.  Foster,  A.  G.,  appeared 
for  the  Commonwealth,  and  J.  G.  Abbott  and  B.  F.  Russell^  for  the 
prisoner. 

The  homicide  was  committed  near  the  armor}-  in  Cooper  Street,  in 
Boston,  at  about  seven  o'clock  in  the  evening,  during  a  riot  which 
grew  out  of  the  enforcement  of  a  draft  of  men  for  the  army  ;  and  the 
evidence  offered  by  the  government  tended  to  show  that  the  prisoner 
was  there  participating  in  the  riot,  with  a  large  number  of  other 
persons.^  .   .    . 

It  appeared  that  a  military  force  was  called  out  to  suppress  the  riot 
in  Cooper  Street,  and  was  stationed  in  the  armory,  and  that  the  mob 
were  fired  upon  bj-  the  soldiers,  and  the  soldiers  by  the  mob.  After  the 
evidence  on  both  sides  was  closed,  the  attorne,v  general  requested,  for 
the  convenience  of  counsel,  a  decision  upon  the  following  prayer  for 
instructions:  *"  Tliat  whether  Currier  was  killed  by  a  shot  from  within 
or  without  the  armory,  all  the  parties  unlawfully  engaged  in  the  trans- 
actions which  resulted  in  the  homicide  were  at  common  law  guilt\',  at 
least  of  manslaughter." 

Bigelow,  C.  J.  The  instruction  asked  for  by  the  attorney  general, 
as  we  understand  it,  is  substantially  this:  If  the  defendant  was  a  par- 
ticipator in  the  riotous  assembly,  and,  during  the  attack  made  by  it  on 
the  armory,  a  homicide  took  place,  the  defendant  is  in  law  guilty  of 
manslaughter,  altliough  the  evidence  ma}'  fail  to  show  whether  the  shot 
which  killed  the  deceased  was  fired  by  the  rioters  with  whom  the 
prisoner  was  acting  in  concert,  or  by  the  soldiers  who  were  within  the 
armory,  and  engaged  in  resisting  the  attack  made  upon  the  building 
by  the  rioters  outside.  This  seems  to  us  to  present  a  novel  question. 
No  authority  has  been  cited  which  directly  supports  the  position  as- 
sumed by  the  attorney  general,  and  so  far  as  we  know  there  is  none  to 
be  found.  This  consideration,  though  h\  no  means  decisive,  is  entitled 
to  some  weight,  because  the  law  of  homicide,  in  its  application  to 
almost  eveiy  variety  and  combmation  of  circumstances,  especial!}'  to 
the  taking  of  life  by  persons  engaged  in  a  tumult  or  riot  or  other  un- 
lawful enter[)rise  or  design,  is  perhaps  more  fully  and  clearly  settled 
than  any  other  branch  of  the  law.  But  we  are  bound  to  examine  tlio 
question  further,  and  ascertain,  if  we  can,  whether  the  doctrine  in 
question  has  any  just  foundation  in  the  recognized  principles  of  law  by 
which  criminal  responsibility  for  the  acts  of  others  is  regulated  and 
governed. 

1  Part  of  the  case  discussing  a  question  of  evidence  is  oiiiittod.  —  Ed. 


SECT.    II.]  COMMONWEALTH    V.    CAMPBELL.  155 

There  can  be  no  doubt  of  the  general  rule  of  law,  that  a  person  en- 
gaged in  the  commission  of  an  unlawful  act  is  legally  responsible  for 
all  the  consequences  which  may  naturally  or  necessaril}-  flow^  from  it, 
and  that,  if  he  combines  and  confederates  with  others  to  accompUsh 
an  illegal  purpose,  he  is  liable  erlininuUter  for  the  acts  of  each  and  all 
who  participate  with  him  in  the  execution  of  the  unlawful  design.  As 
the}'  all  act  in  concert  for  a  common  object,  each  is  the  agent  of  all  the 
others,  and  the  acts  done  are  therefore  the  acts  of  each  and  all.  This 
doctrine,  as  applied  to  cases  of  homicide,  is  fully  stated  in  1  Hale  P.  C. 
441,  in  a  quotation  from  Dalton  in  these  words:  '*  If  divers  persons 
come  in  one  compan}^  to  do  any  unlawful  thing,  as  to  kill,  rob,  or  beat 
a  man,  or  to  commit  a  riot,  or  to  do  any  other  trespass,  and  one 
of  them  in  doing  thereof  kill  a  man,  this  shall  be  adjudged  murder  in 
them  all  that  are  present  of  that  part\'  abetting  him  and  consenting 
to  the  act  or  ready  to  aid  him,  although  thev  did  but  look  on."  So  in 
1  East  P.  C,  257,  it  is  laid  down  that  "  where  divers  persons  resolve 
generally  to  resist  all  opposers  in  the  commission  of  an}-  breach  of  the 
peace,  and  to  execute  it  with  violence,  or  in  such  a  manner  as  natn- 
rall}'  tends  to  raise  tumults  and  affrays  ;  as  b}-  committing  a  violent 
disseisin  with  great  numbers,  or  going  to  beat  a  man,  or  rob  a  paik,  or 
standing  in  opposition  to  the  sheriff's  posse,  they  must  at  their  peril 
abide  the  event  of  their  actions;"  and  if  in  doing  any  of  these  or 
similar  acts  an}-  person  interfering  with  them  is  killed,  all  who  took 
part  in  the  fact  or  abetted  thereto  are  guilty  of  murder.  These  citations 
to  which  many  others  of  a  similar  tenor  might  be  added,  show  that  the 
rule  of  criminal  responsil)ility  for  the  acts  of  others  is  subject  to  the 
reasonable  limitation  tliat  the  particular  act  of  one  of  a  party  for  which 
bis  associates  and  confederates  are  to  be  held  liable  must  be  shown  to 
have  been  done  for  the  furtherance  or  in  prosecution  of  the  common 
object  and  design  for  which  they  combined  together.  AYitliout  such 
limitation,  a  person  might  be  held  responsible  for  acts  which  were  not 
the  natural  or  necessar}'  consequences  of  the  enterprise  or  undertaking 
in  which  he  was  engaged,  and  which  he  could  not  either  in  fact  or  in 
law  be  deemed  to  have  contemplated  or  intended.  No  person  can  be 
held  guilty  of  homicide  unless  the  act  is  either  actuall}-  or  construc- 
tiveh'  his,  and  it  cannot  be  his  act  in  either  sense  unless  committed  by 
his  own  hand  or  by  some  one  acting  in  concert  with  him  or  in  further- 
ance of  a  common  object  or  purpose.  Certainly  that  cannot  be  said 
to  be  an  act  of  a  party  in  any  just  sense,  or  on  any  sound  legal  princi- 
ple, which  is  not  only  not  done  by  him.  or  by  any  one  with  whom 
he  is  associated  or  connected  in  a  common  enterprise,  or  in  attempting 
to  accomplish  the  same  end,  but  is  committed  by  a  person  who  is  his 
direct  and- immediate  adversary,  and  who  is.  at  the  moment  when  the 
alleged  criminal  act  is  done,  actually  engaged  in  opposing  and  resist- 
ing him  and  his  confederates  and  abettors  in  the  accomplishment  of 
the  unlawful  object  for  which  they  are  united.  Suppose,  for  exain[)le, 
a  burglar  attempts   to    break  .into  a   dwelling-house,  and    the  owner 


156  COMMONWEALTH   V.    CAMPBELL.  [CHAP.  III. 

or  occupant,  while  striving  to  resist  and  prevent  tlie  unlawful  entrance, 
b}-  misadventure  kills  his  own  servant.  Can  the  burglar  in  such  ease 
be  deemed  guilty  of  criminal  homicide?  Certainly- not.  The  act  was 
not  done  l^y  him,  or  with  bis  knowledge  or  consent ;  nor  was  it  a  neces- 
sar3'  or  natural  consequence  of  the  commission  of  the  offence  in  which 
lie  was  engaged.  He  could  not  therefore  have  contemplated  or  in- 
tended it.  Another  illustration  will  perhaps  be  more  apposite  to  the 
case  before  us.  Suppose,  during  the  progress  of  the  riot  in  which  it  is 
alleged  the  prisoner  was  engaged,  and  while  the  soldiers  and  others  in 
possession  of  the  armory  were  in  the  act  of  repelling  the  attack  of  the 
mob  in  the  street  b^^  firing  upon  it  with  a  cannon  whicli  was  used  on 
the  occasion,  that  it  had  burst  b}'  reason  of  some  secret  defect,  and 
killed  several  of  those  who  were  in  its  immediate  vicinit}' ;  or  tliat 
a  soldier  while  handling  his  musket  had  bj-  accident  inflicted  a  mortal 
wound  on  himself;  it  would  hardlj'  be  contended  that  in  either  of  these 
cases  the  wliole  bod3^  of  rioters  could  be  held  legally  responsible  for 
criminal  homicide,  hy  reason  of  the  lives  that  were  thus  destroyed. 
And  yet  there  is  no  real  distinction  between  the  cases  supposed  and 
that  of  the  prisoner  at  the  bar,  if  the  rule  insisted  on  b}'  the  attorney 
general  is  a  sound  one.  The  taking  of  human  life,  under  the  circum- 
stances supposed,  in  a  certain  sense  was  the  result  of  the  unlawful  acts 
of  the  mob  —  that  is,  it  would  not  have  occurred  but  for  the  riot  which 
furnished  the  cause  and  occasion  of  the  use  of  the  musket  or  cannon. 

Indeed,  it  seems  to  us  that  in  every  aspect  the  doctrine  contended 
for,  if  followed  to  its  legitimate  and  logical  conclusion,  would  lead  to 
extraordinary  consequences.  It  would  render  everybody  who  partici- 
pated in  a  transaction,  whether  acting  in  concert  or  in  opposition, 
whether  united  in  a  common  design  or  arrayed  on  opposite  sides  in 
a  contest  or  affra}'  in  wliich  each  contending  party  was  striving  to 
defeat  the  purposes  of  the  other,  if  all  acted  without  legal  justifica- 
tion, responsible  for  ever}'  criminal  act  which  was  done  by  any  person 
during  the  progress  of  the  affair  in  which  they  were  all  engaged.  Nor, 
in  applying  the  principle  in  question  to  a  case  like  the  one  before  us, 
can  we  see  any  good  reason  why  the  soldiers  who  defended  the  armory 
and  resisted  the  mob,  if  it  sliould  turn  out  that  thej-  acted  without 
sufficient  legal  authoritv  to  justify  their  acts,  might  not  be  held  guilty 
of  manslaughter  for  homicides  committed  b\'  the  rioters,  if  the  latter 
are  to  be  held  responsible  for  deaths  caused  by  the  acts. of  the  soldiers? 
But  the  rules  of  law  do  not  give  any  countenance  to  such  a  doctrine. 
The  real  distinction  is  between  acts  which  a  man  does  either  actually 
or  constructively,  by  himself  or  his  agents  oV  confedei'ates,  and  those 
which  were  done  by  others  acting  not  in  concert  with  him  or  to  effect 
a  common  object,  but  without  his  knowledge  or  assent,  either  express 
or  implied.  For  the  former  tlie  law  holds  him  strictly  responsible,  and 
for  all  their  necessary  and  natural  consequences,  which  he  is  rightfully 
deemed  to  have  contemplated  and  intended.  For  tlie  latter  he  is  not 
liable,  because  they  are  not  done  by  himself  or  by  those  with  whom  he 


SECT.    II.j  COMMONWEALTH  V.    CAMPBELL.  157 

is  associated,  and  no  design  to  commit  them  or  intent  to  bring  about 
the  results  which  flow  from  them  can  be  reasonably  imputed  to  him. 
So  the  rule  of  law  was  manifestly  understood  b}-  the  framers  of  the 
clause  contained  in  Rev.  Sts.  c.  129,  §  6,  reenacted  in  Gen.  Sts.  c.  164, 
§  6,  which  })rovides  that  if  any  officer,  magistrate,  or  other  person,  act- 
ing in  the  suppression  of  an  unlawful  assembly,  tumult,  or  riot  is  killed 
or  wounded,  all  persons  taking  part  in  such  violation  of  law  shall  be 
answerable  therefor.  This  was  clearly  not  intended  as  a  limitation  of 
the  liabilit}-  at  common  law,  but  only  as  declaratory  of  the  rule  as 
it  then  existed  and  was  understood. 

The  case  of  the  Philadelphia  rioters,  cited  by  the  attorney  general 
from  the  Appendix  to  Wharton's  Law  of  Homicide,  477,  is  obscureh* 
and  iraperfectl}-  reported.  If  it  can  be  supported  at  all  as  a  true  expo- 
sition of  the  law,  it  can  only  be  upon  the  ground  that  both  parties  or 
sides  had  a  common  object  in  view,  namely,  a  breach  of  the  peace,  and 
that  both  went  out  by  an  agreement  or  mutual  understanding  to  en- 
gage in  an  atfray  or  riot.  If  such  was  tlie  fact,  then,  as  in  the  case 
of  a  duel,  although  to  accomplish  the  common  purpose  the}'  took  oppo- 
site sides,  still  they  might  all  well  have  been  deemed  to  have  con- 
federated together  in  an  unlawful  enterprise,  and  thus  to  have  become 
responsible,  on  the  principle  already  stated,  for  a  criminal  act  done  in 
pursuance  of  the  common  design  b}-  an}-  one  of  tlieir  confederates, 
with  whichever  side  he  may  have  acted  in  the  affra}'. 

It  ma}'  properly  be  added  that  we  can  see  no  foundation  in  any 
aspect  of  the  case  for  the  distinction  suggested  by  the  attoi'ney  general 
as  to  the  degree  of  homicide  of  which  the  defendant  would  be  guilty, 
in  the  event  that  the  jury  should  find  that  the  deceased  was  killed 
by  a  shot  fired  by  the  soldiers  in  the  armory,  and  not  by  the  mob.  If 
the  doctrine  contended  for  is  cori-ect,  there  can  be  no  valid  reason  for 
holding  the  defendant  guilty  of  manslaughter  only.  If  he,  as  one 
of  the  riotous  conspirators,  is  liable  at  all  for  acts  done  by  the  soldiers 
and  others  cooperating  with  them,  his  guilt  must  be  the  same  in  degree 
as  if  a  homicide  was  committed  by  one  of  the  rioters  with  whom  he 
was  acting  in  concert.  If  it  was  his  act  at  all,  then  it  was  committed 
by  him  or  his  confederates  while  engaged  in  an  unlawful  enterprise, 
and,  according  to  well-settled  principles,  it  would  be  murder,  and  not 
manslaughter.  But,  for  the  reason  already  given,  it  cannot  be  regarded 
as  an  act  for  which  he  is  in  law  responsible.  If  the  homicide  was  the 
result  of  a  shot  fired  by  the  soldiers  or  other  persons  in  the  armory, 
acting  together  in  defence  against  the  riotous  assembly,  the  defendant 
cannot  be  held  guilty  of  either  murder  or  manslaughter.  The  jury  will 
accordingly  be  instructed  that,  unless  they  are  satisfied  be  ond  a 
reasonable  doubt  that  the  deceased  was  killed  by  means  of  j,  gun  or 
other  deadly  weapon  in  the  hands  of  the  prisoner,  or  of  une  of  the 
rioters  with  whom  he  was  associated  and  acting,  he  is  entitled  to  an 
acquittal.  The  jury  acquitted  the  prisoner.^ 

1  Ace.  Butler  v.  People,  125  111.  641,  IP  N.  E.  338 ;  Com.  v.  Moore  (Ky.),  88  S.  W. 
1085.       Ed. 


158  UNITED  STATES  V.    FREEMAN.  [cHAP.  III. 


SECTION  III. 
Intervening  Force  Risked  as  Result  of  First  Force. 

UNITED   STATES  v.  FREEMAN. 
Circuit  Court  of  the  United  States,  1827. 

[Reported  4  Mason,  505.] 

Indictment  against  the  defendant  for  the  murder  of  one  Da\ad 
Whitehead,  on  the  high  seas,  on  board  of  the  brig  Floyd,  of  which 
the  defendant  was  master,  and  Whitehead  a  seaman,  and  one  of  the 
crew,  on  the  28th  of  April,  1827.  The  indictment  laid  the  charge  in 
two  counts. 

The  first  stated,  that  the  prisoner  made  an  assault  upon  Whitehead, 
and  threw  him  overboard,  and  he  was  drowned.  The  second  stated, 
that  the  prisoner,  lieing  master  of  the  brigantine  Floyd,  and  White- 
head an  ordinary  seaman  on  board  the  said  vessel,  but  in  a  weak  state 
of  body,  and  unable  to  perform  the  duty  of  a  seaman,  and  the  prisoner, 
knowing  that  Whitehead  was  unable  to  perform  his  duty,  wilfully 
ordered  and  compelled  him,  without  his  consent,  and  against  his  will, 
to  go  aloft  upon  the  mainmast  and  rigging  of  the  vessel,  and  that 
\A'hitehead,  by  said  compulsion,  attempting  to  go  up  aloft,  by  reason 
of  his  weakness  of  body  fell  overboard  into  the  sea  and  was  drowned, 
whereby  said  Freeman  wilfully  murdered  said  Whitehead.  .  .  . 

Story,  J.  in  the  course  of  his  summing  up  to  the  jury,  stated  his 
opinion  as  follows:    .    .    . 

The  first  inquiry  proper  for  the  jury  then  is,  whether  Whitehead 
came  to  his  death  by  mere  accident  or  misadventure;  or  whether  it 
was  occasioned  by  his  debility  and  exhaustion,  arising  from  physical 
infirmity  at  the  time  of  his  fall  from  the  yard.  If  occasioned  by  such 
debility  and  exhaustion,  the  next  inquiry  ought  to  be,  whether  that 
state  of  debility  and  exhaustion  was  fully  knowni  to  Capt.  Freeman, 
when  he  gave  the  orders  for  his.  Whitehead's  going  aloft.  If  so,  were 
the  circumstances  such  as,  that  Capt.  Freeman  must,  and  ought  to 
have  foreseen,  that  the  enforcement  of  his  order  to  go  aloft  would 
proliably  be  attended,  either  by  death  or  enormous  bodily  injury  by 
falling,  to  Whitehead,  so  that  the  jury  can  justly  infer,  that  it  must 
have  been  persisted  in  from  personal  malice  to  the  deceased,  or  from 
such  a  brutal  malignity  of  conduct,  as  carries  with  it  the  plain  indica- 
tions of  a  heart  regardless  of  social  duty,  and  fatally  bent  on  mischief. 
If  so,  it  was  murder.    And  it  would  not  var\'  the  case,  that  the  moral 


SECT.  III.]    ATCHISON,  TOPEKA  AND  SANTA  FE  RY.  CO.  V.  PARRY.    159 

force  of  the  authority  of  the  master  to  compel  performance,  instead  of 
physical  fol-ce,  produced  compHance  with  the  order  on  the  part  of 
Whitehead,  although  the  latter  was  sensible  of  his  own  extreme  debility. 
If  the  jury  are  not  satisfied,  that  there  was  either  actual  malice  to 
the  deceased,  or  constructive  malice,  arising  from  l^rutal  malignity, 
as  before  mentioned;  still,  if  the  circumstances  of  the  case  show,  that 
there  was  gross  heedlessness,  want  of  due  caution,  and  unreasonable 
exercise  of  authority  on  the  part  of  Capt.  Freeman,  and  that  he  ought 
to  have  knowTi,  and  could  not  but  have  knoA\Ti,  that  Whitehead  was 
unfit  to  go  aloft,  and  that  there  was  probable  and  immediate  danger 
to  his  life  in  his  so  doing,  then,  notwithstanding  the  absence  of  such 
malice,  the  offence  is  at  least  manslaughter.  For  every  act  done  wil- 
fully, and  with  gross  negligence,  by  any  person,  the  known  effect  of 
which,  under  the  circumstances,  must  be  to  endanger  life,  is,  if  death 
ensues,  at  least  manslaughter. 

Verdict,  guilty  of  manslaughter,  and  sentence  accordingly. 


ATCHISON,    TOPEKA    AND    SANTA    FE   RAILWAY    CO. 

V.    PARRY. 

Supreme  Court  of  Kansas,  1903. 

[Reported  67  Kan.  51.5.] 

Cunningham,  J.  Robert  Parry  was  a  passenger  on  the  Santa 
Fe  Railway  going  from  Purcell,  Ind.  T.,  to  Denver,  Colo.  In  making 
this  journey  he  was  required  to  change  cars  at  Newton,  Kan.  As 
the  train  approached  Newton,  and  a  mile  or  two  south  of  it,  the  con- 
ductor observed  that  Parry  was  ailing  with  something  that  looked 
to  him  like  a  fit.  He  noticed  that  Mr.  Parry  "  was  straightened  out,  and 
his  limbs  were  stiff  and  jerking.  He  was  frothing  at  the  mouth,  and  his 
eyes  looked  glaring  and  starry,  just  like  a  man  that  had  a  fit."  When 
the  train  arrived  at  Newton,  Mr.  Parry  seemed  to  be  recovering,  but 
had  not  entirely  regained  consciousness,  and  the  conductor  was  unable 
to  get  any  response  when  he  tried  to  converse  with  him.  The  con- 
ductor called  the  depot  master,  who,  with  the  assistance  of  the  porter, 
removed  Mr.  Parry  from  the  train,  the  depot  master  being  informed 
by  the  conductor  of  the  condition  of  the  passenger,  and  requested  to 
take  care  of  him,  and  see  that  he  was  put  upon  the  right  train  to  take 
him  to  his  destination,  which  train  was  to  leave  in  about  four  .lours. 
After  the  passenger  was  removed  from  the  train,  he  was  left  in  ne  care 
of  the  depot  master,  the  porter  going  to  his  other  duties.  The  depot 
master  tried  to  talk  with  him,  but  elicited  nothing  but  groans,  mutter- 


160      ATCHISON,  TOPEKA  AND  SANTA  FE  RY.  CO.  r.  PARRY.   [CHAP.  III. 

ings,  and  unintelligible  replies.  It  seemed,  however,  to  the  depot  master 
that  he  desired  to  go  his  own  way  without  any  assistance,  so  that,  after 
helping  him  on  with  his  coat,  he  was  allowed,  after  about  five  or  ten 
minutes,  to  take  his  own  course,  without  further  attention,  the  depot 
master  supposing  that  he  had  been  drinking,  and  desired  to  go  where 
lie  could  procure  liquor.  The  next  seen  of  him  was  about  four  hours 
after  his  removal  from  the  train,  at  a  point  about  five  miles  south 
of  Newton,  where,  having  lain  down  upon  the  railway-  tracks,  he  was 
run  over  by  a  south-bound  train  and  killed.  The  negligence  counted 
upon  l)y  the  plaintiff,  his  widow,  as  a  ground  for  recovery,  was  that 
the  company  failed  to  exercise  a  proper  degree  of  caution  and  care 
in  looking  after  Mr.  Parry  after  he  was  removed  from  the  train  in  an 
unconscious  and  irresponsible  condition  of  mind  and  body.  The 
jury  returned  a  general  verdict  in  favor  of  the  defendant  in  error,  and 
also  answered  special  questions  submitted  to  them,  among  which  are 
the  following:  "(7)  What  was  his  appearance  and  condition,  mentally 
and  physically,  on  his  arrival  at  Newton?  Ans.  Recovering  from  a 
convulsion,  and  partially  unconscious.  (8)  Did  J.  W.  Anderson,  the 
depot  master,  at  Newton,  of  the  defendant,  take  charge  of  the  de- 
ceased upon  his  arrival  at  Newton?  Ans.  He  did."  "  (10)  Does  said 
Anderson  possess  the  common  and  ordinary  capabilities,  judgment,  and 
prudence  of  men  and  persons  generally?  Ans.  We  think  so.  (11) 
About  how  long  did  said  Anderson  keep  charge  of  said  deceased? 
Ans.  Five  to  ten  minutes."  "  (15)  When  said  Anderson  ceased  to  care 
for  the  deceased,  did  Anderson*  believe  that  the  deceased  had  sufficient 
strength  and  consciousness  to  take  care  of  himself?  Ans.  He  claimed 
so.  (16)  At  the  time  Anderson  ceased  to  care  for  the  deceased,  did  he 
think  or  contemplate  that  deceased  would  wander  away,  and  after- 
wards get  into  a  place  of  danger  and  lose  his  life?  Ans.  No."  The 
railroad  company  demurred  to  the  plaintiff's  evidence,  which  was  over- 
ruled. It  also  moved  for  judgment  in  its  favor  upon  the  special  find- 
ings. This  was  overruled,  and  judgment  entered  for  plaintiff  upon  the 
general  verdict. 

The  railway  company  here  insists  that  the  judgment  against  it  was 
erroneous,  first,  because  there  was  no  e\'idence  shoA\ang  any  culpable 
negligence  on  the  part  of  any  of  its  agents  or  servants;  second,  if  there 
was,  that  such  negligence  was  not  the  proximate  cause  of  the  injury.^ 

It  is  further  contended  that,  even  though  the  depot  master  was  neg- 
ligent in  his  manner  of  treatment  of  the  deceased,  such  negligence  was 
npt  the  proximate  cause  of  the  death;  that  no  reasonably  prudent  man 
would  have  foreseen  that  Parry  would  have  wandered  away  for  a  dis- 
tance of  five  miles,  and  have  laid  down  or  fallen  upon  the  track  in 
such  a  place  and  position  that  he  would  be  run  over  by  the  train,  and 


1  The  court  held  that  there  was  sufficient  evidence  to  support  the  verdict  upon 
the  first  point.  — Ed. 


, 


SECT.  III.]  ATCHISOX,  TOPEKA  AND  SANTA  FE  RY.  CO.  V.  PARRY.        161 

thus  killed;  and  that  the  company,  therefore,  was  not  required  to 
guard  against  so  improbaljle  a  result.  Negligence,  to  be  the  proximate 
cause  of  an  injury,  must  be  such  that  a  person  of  ordinary  caution  and 
prudence  would  have  foreseen  that  an  injury  would  likely  result  there- 
from; not  that  the  specific  injury  would  result,  but  an  injury  of  some 
character.  "  '  It  is  not  necessary,'  say  the  Supreme  Court  of  Minnesota, 
following  the  Supreme  Judicial  Court  of  Massachusetts, '  that  the  injury, 
in  the  precise  form  in  which  it  in  fact  resulted,  should  have  been  fore- 
seen. It  is  enough  that  it  now  appears  to  have  been  a  natural  and 
probable  consequence.'  In  other  words,  it  is  not  necessary  to  a  de- 
fendant's liability,  after  his  negligence  has  been  established,  to  show, 
in  addition  thereto,  that  the  consequence  of  his  negligence  could  have 
been  foreseen  by  him;  it  is  sufficient  that  the  injuries  are  the  natural, 
though  not  the  necessary  and  inevitable,  result  of  the  negligent  fault." 
Thompson's  Com.  Law  of  Neg.,  §  59.  It  here  appears  that  the  place 
where  the  depot  master  permitted  Parry  to  go  by  himself  was  near 
a  street  crossing  over  which  tracks  were  laid  along  which  trains  passed. 
It  was  a  place  of  danger  to  one  not  in  the  possession  of  his  faculties; 
a  place  where  the  depot  master  might  reasonably  have  apprehended 
that  harm  of  some  sort  would  come  to  Parry  in  his  then  condition. 
So  that,  although  he  wandered  for  four  hours,  and  was  run  over  five 
miles  from  this  place,  the  act  of  the  depot  master  in  permitting  him 
to  go  was  no  less  the  proximate  cause  of  his  death  than  it  would  have 
been  if  it  had  occurred  within  a  short  distance  and  a  few  moments. 
At  most,  the  question  whether  the  negligence  of  the  depot  master 
was  the  proximate  cause  is  one  upon  which  the  minds  of  different  parties 
might  reasonably  disagree,  and,  such  being  the  case,  and  the  whole 
matter  having  been  sul)mitted  to  a  jury  under  proper  instructions,  and 
it  having  found  that  it  was,  we  may  not  disregard  these  findings  of 
fact.  We  are  of  the  opinion  that  upon  both  questions  there  was  suffi- 
cient evidence  to  go  to  the  jury  and  to  sustain  the  general  finding  in 
favor  of  the  defendant  in  error. 

The  judgment  will  be  affirmed.    All  the  Justices  concurring. 


162  '  GIOIAN   r.    XOYES.  [CIL\P.    III. 


OILMAN   V.   NOYES. 
Superior  Court  of  Judicature  of  New  Hampshire,  1876. 

[Reported  57  .V.  //.  627.] 

Case,  for  carelessly  leaving  the  plaintifT's  bars  down,  whereby  his 
cattle  and  sheep  escaped,  and  he  was  compelled  to  expend,  and  did 
expend,  time  and  money  in  hunting  for  the  same,  and  his  sheep  were 
wholly  lost. 

The  e\'idence  tended  to  show  that  the  defendant,  in  looking  after 
his  own  cattle,  left  the  plaintiff's  bars  down,  and  that  his  cattle,  and 
three  sheep  belonging  to  one  Marshall,  and  which  the  plaintiff  was 
pasturing,  were  wholly  lost.  The  defendant  denied  that  said  cattle  and 
sheep  escaped  through  the  bars,  and  introduced  e^'idence  tending  to 
show  that  they  escaped  through  other  fence  of  the  plaintiff,  and  with- 
out fault  on  the  part  of  the  defendant.  As  tending  to  show  that  the 
defendant  was  liable,  the  plaintiff,  without  objection,  testified  that  he 
called  on  the  defendant,  soon  after  he  ascertained  that  his  cattle  and 
sheep  had  escaped,  and  claimed  that  they  had  escaped  through  Lis 
fault  and  requested  liim  to  go  and  look  them  up ;  to  which  the  defend- 
ant replied,  that  he  could  not  then  go,  but  that  the  plaintiff  must  look 
them  up  himself,  and  he  would  pay  him  what  was  right  for  the  damage 
and  for  his  trouble.  The  defendant  did  not  admit  that  he  made  these 
statements,  as  testified  to  by  the  plaintiff,  and  claimed  that  whatever 
he  did  say  was  under  a  misapprehension.  The  e\'idence  tended  to 
show  that  the  sheep  were  destroyed  by  bears  after  they  had  escaped 
from  the  plaintiff's  pasture.  The  defendant  claimed  that  the  damages 
were  too  remote,  and  that  they  were  not  the  natural  consequences  of 
the  alleged  careless  acts  of  the  defendant.  The  defendant  requested 
the  following  instructions: 

1.  If  the  jury  find  to  be  true  the  statement  of  the  plaintiff,  that,  when 
he  went  and  first  called  on  the  defendant,  the  defendant  told  him  that 
he  was  in  for  the  damage,  and  he  wanted  him,  the  plaintiff,  to  hunt  up 
the  cattle,  and  he  would  pay  the  plaintiff  what  was  right  for  the  dam- 
age, and  that  the  plaintiff  assented  to  this,  he  cannot  recover  in  this 
form  of  action. 


SECT.    III.]  CILMAX    l\    XOYES.  163 

2.  That  if  the  jury  find  that  the  plaintiff  and  the  defendant  agreed 
that  the  plaintiff  should  hunt  up  the  cattle,  and  that  the  defendant 
should  pay  him  what  was  right  for  the  damages,  this  action  cannot  be 
maintained. 

3.  If  the  jury  find  that  it  was  agreed  by  the  parties  that  the  plaintiff 
was  to  hunt  up  the  cattle,  and  the  defendant  was  to  pay  the  plaintiff 
the  expense  and  trouble  of  hunting,  the  plaintiff  cannot  recover  for 
such  trouble  and  expense  so  incurred  at  the  request  of  the  defendant  in 
this  form  of  action.    His  remedy  would  be  assumpsit. 

4.  That,  the  sheep  being  the  property  of  Marshall,  the  plaintiff  can- 
not in  this  action  recover  the  value  of  the  same. 

5.  That  if  the  jury  find  that  the  sheep  were  killed  by  bears  after 
their  escape  from  the  pasture,  the  plaintiff  cannot  reco^■er,  as  the  dam- 
ages would  be  too  remote. 

These  requests  the  court  denied,  but  did  instruct  the  jury,  among 
other  things,  that  if  the  defendant  left  the  plaintiff's  bars  down,  and 
his  cattle  thereby  escaped,  he  was  entitled  to  recover  for  the  time  and 
money  expended  in  hunting  for  them;  that  if  the  sheep  were  in  his 
possession  and  care,  and  they  escaped  in  consequence  of  the  bars  being 
left  down  by  the  defendant,  and  would  not  have,  been  killed  but  for  the 
act  of  the  defendant,  he  was  liable  for  their  value,  whether  the  plaintiff 
was  the  absolute  owner  or  not;  that  the  statements  made  by  the  de- 
fendant were  proper  to  be  considered  by  the  jury  upon  the  question 
whether  or  not  the  damages  to  the  plaintiff  were  occasioned  by  tlie  acts 
of  the  defendant.  To  all  of  which  refusals  and  instructions  the  defend- 
ant excepted. 

The  jury  returned  a  verdict  for  the  plaintiff,  and  assessed  the 
damages  for  hunting  for  the  cattle  at  $13.16,  and  for  the  sheep 
at  S9. 

The  defendant  moved  to  set  the  verdict  aside,  and  for  a  new 
trial. 

The  questions  of  law  arising  on  the  foregoing  case  were  transferred 
by  Stanley,  J.,  C.  C. 

Gushing,  C.  J.  The  objection  to  the  requests  for  instructions  in 
regard  to  the  compromise  is,  that  they  are  not  based  upon  the  evidence. 
The  evidence  was  to  the  effect  that  the  defendant  admitted  his  liability, 
and  said  that  he  would  pay  the  damage.  But  there  was  nothing  said 
or  done  by  the  parties  from  which  the  jury  could  infer  an  accord  and 
satisfaction  if  it  had  been  pleaded,  and  that  defense  could  not  be  taken 
at  all  without  a  plea  to  that  effect. 

As  to  the  objection  that  the  plaintiff  could  not  recover  because  the 
sheep  were  the  property  of  Marshall,  it  seems  enough  to  say  that  it  is 
very  well  settled  in  this  state  that  a  bailee  has  sufficient  interest  in  the 
property  bailed  to  sustain  an  action  for  damage  done  to  it. 

It,  should  have  been  left  to  the  jury  to  determine  whether  the  injury 


164  OILMAN   V.    NOTES.  [cHAP.    III. 

was  one  for  which  the  defendant's  fault  was  the  proximate  cause.  The 
court  rightly  refused  to  instruct  the  jury  that  the  damage  was  too 
remote,  because  that  was  a  matter  for  the  jury  to  determine.  I  am 
not  prepared,  however,  to  liohl,  that  the  criterion,  for  determining 
whether  the  defendant's  fault  was  the  proximate  cause  of  the  damage, 
is,  whether  the  damage  would  or  would  not  have  happened  without 
the  defendant's  fault. 

This  matter  of  remote  and  proximate  cause  has  been  recently  a  good 
deal  discussed  in  the  case  of  fires  occasioned  by  the  negligent  manage- 
ment of  locomotives.  Where  the  fire  has  spread  from  point  to  point 
and  from  l)uilding  to  building,  the  question  to  what  extent  the  negli- 
gence was  the  proximate  cause  has  been  held  to  be  for  the  jury  to  de- 
termine. But  in  no  one  of  those  cases,  whether  the  damage  was  held 
to  be  proximate  or  remote,  could  it  have  happened  at  all  except  for  the 
negligence  complained  of. 

I  think  the  doctrine  of  the  cases  now  is,  that  the  question  whether 
the  damage  is  remote  or  proximate  is  a  question  of  fact  for  the  jury, 
and  that  the  jury  have  to  determine  whether  the  damage  is  the  natural 
consequence  of  the  negligence,  and  such  as  might  have  been  anticipated 
by  the  exercise  of  reasonable  prudence.  If  the  damage  would  not  have 
happened  without  the  intervention  of  some  new  cause,  the  operation  of 
which  could  not  have  been  reasonably  anticipated,  it  would  then  be  too 
remote.  2  Parsons  on  Contracts,  179;  State  v.  Manchester  &  La^Tence 
Railroad,  52  N.  H.  552,  and  cases  there  cited;  Fent  v.  Toledo,  Peoria 
&  Warsaw  Railway  Co.,  59  III.  349;  S.  C.  14  Am.  R.  13. 

In  the  present  case  it  appears  that  the  e\adence  tended  to  show  the 
intervention  of  such  new  cause  —  viz.,  bears  —  and  it  would  have  been 
for  the  jury  to  say  whether  it  was  natural  and  reasonable  to  expect 
that  if  the  sheep  were  suffered  to  escape  they  would  be  destroyed  in  that 
way. 

If  these  views  are  correct,  the  verdict  must  be  set  aside,  and  a  new 
trial  granted. 

Smith,  J.  I  concur  in  the  foregoing  conclusions  of  the  chief  justice, 
and  for  the  reasons  given  l)y  him.  The  principal  question  in  this  case 
has  been  much  discussed  in  the  English  and  American  courts,  though 
but  little  in  this  State.  The  rule,  that  the  plaintiff  can  recover  only 
when  the  defendant's  act  or  negligence  was  the  proximate  cause  of  the 
injury,  is  one  of  universal  application;  but  the  difficulty  lies  in  deter- 
mining when  the  cause  is  proximate  and  when  remote.  It  is  a  mixed 
question  of  law  and  of  fact,  to  be  submitted  to  the  jury  under  proper 
instructions.  W'e  have  recently  held  that  it  is  always  for  the  jury  to 
say  whether  the  damage  sustained  is  what  the  defendant  ought  to 
have  expected,  in  the  exercise  of  reasonable  care  and  discretion. 
Stark  V.  Lancaster,  57  N.  H.  88,  and  authorities  cited;  McInt>Te  v. 
Plaisted,  57  N.  H.  606.      See,  also.  State  v.  M.  &  L.  R.  R.,  52  N.  H. 


SECT.    III.]  GILMAX    V.    NOYES.  IGo 

552;  Gate  v.  Gate,  50  N.  H.  144;  Underhill  v.  Manchester,  45  X.  H. 
218. 

The  rule,  as  thus  laid  down,  is  also  given  in  substance  in  2  Parsons 
on  Gontracts,  456;  2  Gr.  Ev.,  §  256,  and  Sedgw^ck  on  Damages,  88. 
The  numerous  cases  in  which  this  question  has  been  discussed  are 
cited  by  the  above  authors.  It  would  be  an  unnecessary  labor  to  re- 
view' them  in  detail. 

In  this  case  the  e\adence  tended  to  show  the  intervention  of  a  new 
cause  of  the  destruction  of  the  plaintiff's  sheep  after  their  escape  from 
his  pasture,  which  could  not  reasonably  have  been  anticipated.  The 
only  practicable  rule  to  be  drawn  from  all  the  cases,  for  determining 
this  case,  it  seems  to  me,  is,  to  inquire  whether  the  loss  of  the  plain- 
tiff's sheep  by  bears  was  an  event  which  might  reasonably  have  been 
anticipated  from  the  defendant's  act  in  lea\ing  his  bars  down,  under  all 
the  circumstances  of  this  case.  If  it  was  a  natural  consequence  which 
any  reasonable  person  could  have  anticipated,  then  the  defendant's  act 
was  the  proximate  cause.  If,  on  the  other  hand,  the  bears  were  a  new 
agency,  which  could  not  reasonably  have  been  anticipated,  the  loss  of 
the  sheep  must  be  set  down  as  a  remote  consequence,  for  which  the  de- 
fendant is  not  responsible.  * 

The  jury  were  instructed  that  if  the  sheep  escaped  in  consequence  of 
the  bars  being  left  down  by  the  defendant,  and  would  not  have  been 
killed  but  for  this  act  of  the  defendant,  he  was  liable.  Under  these 
instructions  the  jury  could  not  inquire  whether  the  destruction  of  the 
sheep  by  the  bears  was  an  event  which  might  reasonably  have  been  an- 
ticipated from  the  leaving  of  the  bars  down,  and  for  this  reason  I  agree 
that  the  verdict  must  be  set  aside. 

Ladd,  J.  I  am  unable  to  free  my  mind  from  considerable  doubt  as 
to  the  correctness  of  the  ground  upon  which  my  brethren  put  the 
decision  of  this  case. 

The  defendant  requested  the  court  to  charge  that,  if  the  jury  found 
that  the  sheep  were  killed  by  bears  after  their  escape,  the  damages 
would  be  too  remote.  This  the  court  declined  to  do,  but  did  instruct 
them  that  if  the  sheep  escaped  in  consequence  of  the  bars  being  left 
down  by  the  defendant,  and  would  not  have  been  killed  but  for  that  act 
of  the  defendant,  he  was  liable  for  their  value.  Both  the  request  and 
the  instruction  went  upon  the  ground  that  the  question  of  remoteness 
—  all  the  facts  being  found  —  was  for  the  court,  and  not  for  the  jury. 
Upon  that  distinct  and  simple  question  the  defendant  claimed  one  way 
and  the  court  held  the  other.  I  understand  it  to  be  the  opinion  of  my 
brethren  that  neither  was  right;  that  the  question  of  remoteness  was 
for  the  jury,  and  that  the  court  erred  in  not  so  treating  it.  Whether 
it  is  for  the  jury  or  the  court,  everyone  who  has  considered  the  matter 
will  agree  that  it  is  almost  always  a  troublesome  question,  and  often 
one  attended  with  profound  intrinsic  difficulty. 


106  GILMAN   -v.    NOYES.  [ciIAP.    III. 

The  verdict  here  settles  (1)  that  the  bars  were  left  clown  by  the 
defendant;  (2)  that  the  sheep  escaped  in  consequence  thereof;  (3) 
that  the}^  would  not  otherwise  have  been  killed.  Was  the  defendant's 
act  the  proximate  cause  of  the  damage?  Was  it  the  cause  in  such  sense 
that  the  law  will  take  cognizance  of  it  by  holding  the  defendant  liable 
to  make  reparation  in  damages?  And  is  that  question  one  for  the  court, 
or  for  the  jury,  to  decide?  The  sheep  would  not  have  been  killed,  the 
jury  say,  but  for  that  act:  does  it  follow  that  the  damage  was  not  too 
remote?  Certainly,  I  think,  it  does  not.  That  one  event  would  not 
have  happened  but  for  the  happening  of  some  other,  anterior  in  point 
of  time,  doubtless  goes  somewhat  in  the  direction  of  establishing  the 
relation  of  cause  and  effect  between  the  two.  But  no  rule  of  law 
as  to  remoteness  can,  as  it  seems  to  me,  be  based  upon  that  one  cir- 
cumstance of  relation  alone,  because  the  same  thing  may  very  likely 
be  true  with  respect  to  many  other  antecedent  events  at  the  same  time. 
The  human  powers  are  not  sufficient  to  trace  any  event  to  all  its  causes, 
or  to  say  that  anything  which  happens  would  have  happened  just  as  it 
did  but  for  the  happening  of  myriads  of  other  things  more  or  less  re- 
mote and  apparently  independent.  The  maxim  of  the  schoolmen  — 
Causa  causantis,  causa  est  causati  —  may  be  true,  but  it  obviously  leads 
into  a  labyrinth  of  refined  and  bewildering  speculation  whither  the  law 
cannot  attempt  to  follow.  This  case  furnishes  an  illustration.  The 
jury  say  the  sheep  would  not  have  been  killed  by  bears  but  for  their 
escape,  and  would  not  have  escaped  but  for  the  bars  being  left  down. 
But  it  is  equally  certain,  without  any  finding  of  the  jury,  that  they 
would  not  have  been  killed  by  bears  if  the  bears  had  not  been  there  to 
do  the  deed ;  and  how  many  antecedent  facts  the  presence  of  the  bears 
may  involve,  each  one  of  which  bore  a  causative  relation  to  the  princi- 
pal fact  sufficiently  intimate  so  that  it  may  be  said  the  latter  would  not 
have  occurred  but  for  the  occurrence  of  the  former,  no  man  can  say. 
Suppose  the  bears  had  been  chased  by  a  hunter,  at  any  indefinite  time 
before,  whereby  a  direction  was  given  to  their  wanderings  which  brought 
them  into  the  neighborhood  at  this  particular  time;  suppose  they 
were  repulsed  the  night  before  in  an  attack  upon  the  beehives  of  some 
farmer  in  a  distant  settlement,  and,  to  escape  the  stings  of  their  \'in-' 
dictive  pursuers,  fled,  with  nothing  but  chance  to  direct  their  course, 
towards  the  spot  where  they  met  the  sheep;  suppose  they  were  fright- 
ened that  morning  from  their  repast  in  a  neighboring  cornfield,  and  so 
brought  to  the  place  of  the  fatal  encounter  just  at  that  particular  point 
of  time. 

Ob\aously  the  number  of  events  in  the  history  not  only  of  those  in- 
dividual bears,  but  of  their  progenitors  clear  back  to  the  pair  that,  in 
instinctive  obedience  to  the  di\ine  command,  went  in  unto  IJJoah  in  the 
ark,  of  which  it  may  be  said,  but  for  this  the  sheep  would  not  have  been 
killed,  is  simply  without  limit.  So  the  conduct  of  the  sheep,  both 
before  and  after  their  escape,  opens  a  field  for  speculation  equally  pro- 


SECT.    III.]  GILMAN   V.    NOTES.  '  1G7 

found  and  equally  fruitless.  It  i^  easy  to  imagine  a  vast  variety  of 
circumstances,  without  which  they  would  not  have  made  their  escape 
just  at  the  time  they  did  though  the  bars  were  down,  or,  having  escaped, 
would  not  have  taken  the  direction  to  bring  them  into  the  way  of  the 
bears  just  in  season  to  be  destroyed,  as  they  were.  Such  a  sea  of 
speculation  has  neither  shores  nor  bottom,  and  no  such  test  can  be 
adopted  in  drawing  the  uncertain  line  between  consequences  that  are 
actionable  and  those  which  are  not. 

Some  aid  in  dealing  with  this  question  of  remoteness  in  particular 
cases  is  furnished  by  Lord  Bacon's  rule  —  In  jure  causa  proxima,  non 
remota  spectatur —  and  other  formulas  of  a  like  description,  because  they 
suggest  some  boundaries,  though  indistinct,  to  a  wilderness  that  other- 
wise, and  perhaps  in  the  nature  of  things,  has  no  limit. 

Where  damages  are  claimed  for  the  breach  of  a  contract,  it  has  been 
said  that  the  nearest  application  of  anything  like  a  fixed  rule  is,  that 
the  injury  for  which  compensation  is  asked  should  be  one  that  may  be 
fairly  taken  to  have  been  contemplated  by  the  parties  as  the  possible 
result  of  the  breach  of  contract.  Cockburn,  C.  J.,  in  Hobbs  v.  Lx)ndon 
&  S.  W.  Railway  Co.,  L.  R.  10  Q.  B.  117.  In  tort,  they  must  be  the 
legal  and  natural  consequence  of  the  wrongful  act.  Sedgwick  on 
Damages,  82,  and  cases  cited;  2  Gr.  Ev.,  §§  252-256,  and  cases  cited. 
But  an  examination  of  the  numerous  cases  where  this  matter  has  been 
carefully  and  learnedly  discussed,  shows  that  the  intrinsic  difficulties 
of  the  subject  are  not  removed,  although  they  may  be  aided,  ]by  the 
application  of  such  rules.  Whether  the  extent,  degree,  and  intimacy 
of  causation  are  sufficient  to  bring  the  injurious  consequences  of  an 
act  within  the  circle  of  those  wrongs  for  which  the  law  supplies  a 
remedy  still  remains  the  great  question  to  be  determined  in  each  case 
upon  its  indi\adual  facts.  That  the  subject  is  one  beset  with  difficulties 
is  conspicuously  shown  by  the  great  number  of  cases,  from  Scott  v. 
Shepherd,  2  Wm.  Bl.  892  (where  Sir  William  Blackstone  was  unable 
to  agree  wath  the  court),  down  to  the  present  time,  in  which  judges  of 
equal  learning  and  ability  have  differed  as  to  the  application  of  rules 
by  which  all  admit  they  are  to  be  governed. 

The  recent  case  of  Brand  v.  Hammersmith  &  City  Railway  Co., 
L.  R.  1  Q.  B.  130,  well  illustrates  this  remark,  although  the  construc- 
tion of  a  statute  was  there  involved.  It  was  held  by  the  court  of 
queen's  bench  (Mellor  and  Lush,  JJ.,  delivering  opinions),  that  the 
owner  of  a  house,  none  of  whose  lands  have  l)een  taken  for  the  pur- 
poses of  a  railway,  cannot,  under  certain  statutes,  recover  compensa- 
tion in  respect  of  injury  to  the  house  —  depreciating  its  value  —  caused 
by  xdbration,  smoke,  and  noise  in  running  locomotives  with  trains  in 
the  ordinary  manner  after  the  construction  of  the  railway.  Upon 
error  to  the  exchequer  chamber  this  decision  of  the  queen's  bench 
was  reversed  by  Bramwell,  B.,  Keating,  and  Montague  Smith,  J  J., 
Channel,  B.,  dissenting.     Sir  WiUiam  Earle,  while  chief  justice  of  the 


168  OILMAN   V.    NOYES.  [CHAP.    III. 

common  pleas,  had  also  prepared  an  opinion  sustaining  the  judgment 
of  the  queen's  bench,  which  was  not  delivered  because  the  formal 
judgment  of  the  court  was  delayed  till  after  his  resignation.  L.  R.  2 
Q.  B.  223,  note  p.  246. 

The  cause  was  then  carried,  upon  error,  to  the  House  of  Lords,  and 
the  judges  were  called  in.  Of  the  judges  who  returned  answers,  five 
were  in  favor  of  affirming  the  judgment  of  the  exchequer  chamber, 
\'iz.,  Willes,  Keating,  and  Lush,  JJ.,  and  Bramwell  and  Piggott,  BE.; 
while  Mr.  Justice  Blackburn  delivered  a  strong  opinion"  the  other 
way.  In  the  House  of  Lords,  Lord  Chelmsford  and  Lord  Colonsay  were 
for  reversing  the  judgment  of  the  exchequer  chamber,  while  the  Lord 
Chancellor  was  for  affirming  it.  So  that,  of  all  the  judges  and  law  lords 
who  examined  the  question  (including  Sir  William  Earle),  six  were  of 
the  opinion  that  the  damages  could  not  be  recovered,  and  seven  of  a 
contrary  opinion;  while  Lush,  J.,  changed  his  mind  between  the  hear- 
ing in  the  queen's  bench  and  that  before  the  House  of  Lords,  and  de- 
livered an  opinion  the  other  way.  The  case  was  finally  decided  against 
the  opinions  of  a  majority  of  the  judges  who  considered  it. 

The  question  is,  whether  courts  can  relieve  themselves  from  trouble- 
some inquiries  of  this  description  by  handing  them  over  to  the  jury 
for  determination.  I  am  not  now  prepared  to  admit  that  they  can. 
In  this  case,  as  we  have  seen,  the  verdict  settles  that  the  defendant  left 
the  bars  down,  that  the  sheep  escaped  in  consequence,  and  that  they 
would  not  have  been  killed  but  for  their  escape.  Clearly,  no  dis- 
puted fact  is  left  unsettled.  The  only  question  left  open  is,  whether  the 
chimage  is  within  or  without  the  line  drawn  by  the  law  as  the  boundary 
between  those  injuries  for  which  the  law  compels  compensation  to  be 
made  and  those  for  which  it  does  not.  It  is  the  law  that  furnishes 
remedies.  Whether  any  act  or  default  amounts  to  a  legal  \\Tong  and 
injury  for  which  compensation  may  be  recovered  depends  upon  the 
law,  and  is  to  be  determined  by  an  application  of  rules  either  furnished 
by  the  legislature  in  the  form  of  statutes,  or  found  existing  in  the  com- 
mon law.  If  the  law  takes  no  cognizance  of  an  act,  furnishes  no  remedy 
for  its  injurious  results,  then  there  is  no  remedy;  and  though  it  may 
be  wrong  in  a  sentimental  or  moral  point  of  view,  the  sufferer  can 
have  no  recompense.  And  I  cannot  see  what  difference  it  makes  in 
this  respect  whether  the  rule  is  established  by  a  statute,  or  comes  from 
the  common  law.  That  A  can  recover  damages  against  B  for  an  assault 
and  battery  committed  upon  him  by  the  latter,  depends  just  as  much 
upon  a  rule  of  positive  law,  in  this  State,  as  that  he  may  recover  against 
C,  who  has  unlawfully  furnished  liquor  to  B,  who,  in  a  state  of  intoxi- 
cation produced  by  the  liquor,  makes  the  assault.  One  is  a  pro- 
vision of  the  common  law;  the  other,  of  a  statute.  When  the  court  of 
South  Carolina  held  that  where  a  person,  against  the  hiw,  furnished  a 
slave  with  intoxicating  liquor,  by  which  he  became  drunk  and  lay  out 
all  night,  and  died  in  consequence,  the  owner  of  the  slave  could  recover 


SECT.    III.]  GILMAN   V.    NOTES.  169 

his  value  against  the  person  who  furnished  the  hquor  (Berkley  v.  Har- 
rison, cited  in  Sedgwick  on  Damages,  89),  they  were  declaring  and  apply- 
ing a  rule  of  law  as  much  as  though  that  remedy  had  been  given  by  a 
statute  similar  to  ours.  So  it  is  in  the  great  mass  of  cases  with  which 
the  books  are  filled:  the  question  as  to  remoteness  is  determined  by 
the  court,  and  the  rule  administered  as  a  rule  of  law.  See  cases  cited 
in  Seflgwick  on  Damages,  ch.  Ill,  passim.  A  large  number  of  English 
and  American  cases  might  be  added,  were  any  citation  of  authorities 
necessary. 

In  Hobbs  v.  The  London  &  S.  W.  Railway  Co.,  already  referred  to,  the 
plaintiff,  with  his  wife  and  two  children,  took  tickets  on  the  defendants' 
railway  from  Wimbledon  to  Hampton  Court,  by  the  midnight  train. 
They  got  into  the  train,  but  it  did  not  go  to  Hampton  Court,  but 
went  along  the  other  branch  to  Esher,  where  the  party  were  compelled 
to  get  out.  It  being  so  late  at  night,  the  plaintiff  was  unable  to  get 
a  conveyance  or  accommodation  at  an  inn;  and  the  party  walked 
to  the  plaintiff's  house,  a  distance  of  about  five  miles,  where  they 
arrived  about  three  in  the  morning.  It  was  a  drizzling  night,  and 
the  wife  caught  cold  and  was  laid  up  for  some  time,  being  unable 
to  assist  her  husband  in  his  business  as  before,  and  expenses  were  in- 
curred for  medical  attendance.  The  jury  gave  £28  damages  —  \'iz., 
£8  for  the  inconvenience  suffered  by  ha\ing  to  walk  home,  and  £20 
for  the  wife's  illness  and  its  consequences.  The  court  held  the  £20 
too  remote.  Blackburn,  J.,  after  stating  the  rule  substantially  as 
given  by  the  chief  justice,  says :  "  For  my  own  part,  I  do  not  feel  that 
I  can  go  further  than  that.  It  is  a  vague  rule,  and,  as  Bramwell,  B., 
said,  it  is  something  like  haAang  to  draw  a  line  between  night  and  day: 
there  is  a  great  duration  of  twilight  when  it  is  neither  night  nor  day." 
And  further  on :  "I  do  not  think  it  is  anyone's  fault  that  it  cannot  be 
put  more  definitely.  I  think  it  must  be  left  as  vague  as  ever  as  to  where 
the  line  must  be  drawn  —  but  I  think,  in  each  case,  the  court  must  say 
whether  it  is  on  the  one  side  or  the  other;  and  I  do  not  think  that  the 
question  of  remoteness  ought  ever  to  be  left  to  a  jury.  That  would  be, 
in  effect,  to  say  that  there  shall  be  no  such  rule  as  to  damages  being 
too  remote;  and  it  would  be  highly  dangerous  if  it  was  to  be  left  gen- 
erally to  the  jury  to  say  whether  the  damage  was  too  remote  or  not." 

Of  course,  all  matters  of  fact,  with  respect  to  the  causative  relation 
that  exists  betw^een  the  act  complained  of  and  the  injurious  conse- 
quences for  which  damages  are  sought,  must  be  found  by  the  jury; 
and  so,  in  one  sense,  it  may  be  said  that  the  question  of  remoteness  is  for 
the  jury,  under  proper  instructions  by  the  court;  but  my  doubt  is, 
whether  proper  instructions  by  the  court  should  not  contain  specific 
direction  as  to  whether  any  given  fact  of  injury,  if  found  proved,  would 
or  would  not,  with  respect  to  the  alleged  cause,  occupy  the  position 
of  remoteness  beyond  the  actionable  degree. 

In  the  present  case,  if  all  the  facts  found  by  the  jury  had  been  well 


170  GILMAN    V.    NO  YES.  [CHAP.    III. 

pleaded  in  the  declaration,  and  there  were  a  demurrer,  would  it  not  be 
the  duty  of  the  court  to  say  whether  the  action  could  be  maintained? 

There  are  a  few  American  cases  which  seem  to  give  countenance  to 
the  \aew  upon  which  this  case  has  been  decided  by  the  court.  Fair- 
banks V.  Kerr,  70  Pa.  St.  86;  Saxton  v.  Bacon,  31  Vt.  540;  Fent  v. 
Toledo,  Peoria  &  Warsaw  Railway  Co.,  59  111.  349,  are,  perhaps,  to  be 
so  regarded. 

Should  it  be  said  that  the  question,  whether  a  given  consequence 
is  one  which  might  fairly  be  anticipated  by  one  knowing  the  facts,  is  in 
its  nature  a  question  of  fact,  it  must  at  the  same  time  be  admitted  that 
it  is  a  fact  which  lies  rather  in  the  region  of  conjecture  than  of  e\'idence 
and  must  be  determined  by  an  appeal  to  the  experience  and  knowledge 
of  human  nature,  and  the  natural  sequence  of  cause  and  effect  possessed 
by  him  who  is  to  decide  it,  rather  than  by  weighing  testimony  and  bal- 
ancing proofs,  while  it  is  at  the  same  time  pure  matter  of  law  whether 
a  given  act  is  prohibited,  and  pure  matter  of  law  and  construction 
whether  a  remedy  is  given  by  the  law,  written  or  unwritten,  for  an 
injury  sustained  in  consequence  of  such  act.  But,  however  the  Ameri- 
can cases  referred  to  are  to  be  understood,  it  seems  to  me  the  great 
weight  of  authority  is  against  the  conclusion  of  the  court;  for  every 
case,  where  the  simple  question  of  remoteness  has  been  determined 
by  the  court,  and  the  rule  applied  as  a  rule  of  law,  would  seem  to  be  a 
direct  authority  the  other  way.  Those  cases  are  too  numerous  and  too 
familiar  to  need  citation. 

The  charge  of  the  court  was  in  accordance  with  this  \aew.  The  jury 
were  required  to  find  whether  the  act  of  the  defendant  in  leaving  the 
bars  down  was  an  event  without  which  the  loss  would  not  have  occurred; 
and  then  the  court  undertook  to  apply  a  rule  of  law  by  saying  that,  if 
that  particular  relation  of  cause  and  effect  did  exist,  the  consequence 
was  so  near,  so  direct,  and  followed  so  naturally  from  the  cause,  that 
it  must  be  regarded  as  a  legal  consequence  for  which  the  defend- 
ant should  be  held  to  make  reparation  in  damages.  I  am  not  prepared 
to  say  that  this  was  error. 

As  the  case  is  disposed  of  upon  different  grounds,  it  is  unnecessary  to 
consider  whether  the  holding  of  the  court  upon  this  question  of  remote- 
ness was  right  or  not.  A  few  cases  may,  however,  be  referred  to,  which 
bear  more  or  less  directly  upon  that  question,  as  well  as  the  main 
question  I  have  l)een  considering.  In  Powell  v.  Salisbury,  2  Y.  &  J. 
391,  the  plaintiff  declared  in  case  against  the  defendant,  for  not  repair- 
ing his  fences,  per  quod  the  plaintiff's  horses  escaped  into  the  de- 
fendant's close,  and  were  there  killed  by  the  falling  of  a  haystock: 
held,  that  the  damage  was  not  too  remote,  and  that  the  action  was 
maintainable.  In  I^ee  v.  Riley,  18  C.  B.  (N.  S.)  722,  the  defendant's 
mare  strayed  into  a  field  belonging  to  the  plaintiff',  through  the  defect 
of  a  fence  which  the  defendant  was  bound  to  repair,  and  kicked  the 
plaintiff's    horse:  held,  that    the  defendant  was    responsible  for   his 


,«ECT.    III.]  ,  OILMAN   I'.    NOYES.  171 

mare's  trespass,  and  that  the  damage  was  not  too  remote.  In  Law- 
rence V.  Jenkins,  L.  R.  8  Q.  B.  274,  the  plaintiff's  cows  strayed  upon 
the  defendant's  close  through  a  gap  in  the  di\'ision  fence,  made  by  the 
carelessness  of  the  defendant's  servants  in  felling  a  tree  upon  it,  and 
there  fed  on  the  leaves  of  a  yew  tree,  and  died  in  consequence:  held, 
that  the  damage  was  not  too  remote,  and  that  the  defendant  was  liable 
to  the  plaintiff  for  the  loss  of  the  cows.  In  Gate  v.  Gate,  50  N.  H.  144, 
a  question  very  similar  to  this  was  left  undecided.  But  Bellows,  G.  J., 
says:  "Upon  a  careful  consideration  of  the  cases,  we  think  there 
is  some  preponderance  of  authority  in  favor  of  the  position  that,  in  a 
case  like  this,  a  party  is  in  some  form  of  action  responsible  for  the  con- 
sequences of  his  wTongful  act,  when  they  are  distinctly  traceable  to 
that  act,  although  such  consequences  may  be  both  remote  and  acciden- 
tal." In  Da\as  v.  Garrett,  6  Bing.  716,  the  defendant  contracted  to 
carry  in  his  barge  the  plaintiff's  lime,  and  the  master  of  the  barge  devi- 
ated unnecessarily  from  the  usual  course,  and  during  the  deviation  a 
tempest  wetted  the  lime,  ^nd,  the  barge  taking  fire,  the  whole  was  lost. 

The  defendant  was  held  liable  for  the  lime,  the  cause  of  the  loss  being 
sufficiently  proximate.  The  court  say  in  their  opinion,  delivered  by 
Tindal,  G.  J.:  "We  think  the  real  answer  to  the  objection  [that  of  re- 
moteness] is,  that  no  wrongdoer  can  be  allowed  to  apportion  or  qualify 
his  own  wrong."  But  in  Greenland  v.  Ghaplin,  5  Exch.  (W.  H.  &  G.) 
243,  Pollock,  G.  B.,  says:  "I  am  desirous  that  it  may  be  understood 
that  I  entertain  considerable  doubt  whether  a  person  who  is  guilty 
of  negligence  is  responsible  for  all  the  consequences  which  may  under 
any  circumstances  arise,  and  in  respect  of  mischief  whicji  could  by  no 
possibility  have  been  foreseen,  and  which  no  reasonable  person  would 
have  anticipated." 

Upon  the  other  questions  in  the  case  I  agree  with  my  brethren,  for 
the  reasons  given  by  them. 

According  to  the  \'iews  of  a  majority  of  the  court,  there  was 

A  new  trial  granted. 


172  DERRY   V.    FLITNER.  [CHAP.    III. 


DERRY  V.   FLITNER. 
SuPREMft  Judicial  Court  of  Massachusetts,  1875. 

[Reported  118  Mass.  131.] 

Morton,  J.  The  plaintiffs  were  engaged  in  building  a  sea  wall 
for  the  Boston  Gas  Light  Company,  around  and  in  front  of  their 
wharf  at  Commercial  Point.  There  was  evidence  tending  to  show  that 
the  Gas  Light  Company  had  given  to  the  plaintiffs  the  exclusive  right 
to  use  the  wall  to  lay  their  vessels  at  as  a  place  of  safety  in  case  of  storms. 

The  judge,  who  tried  the  case  without  a  jury,  has  found  that  the 
plaintiffs  had  such  exclusive  right,  and  it  is  not  our  province  to  re- 
vise his  findings  upon  any  questions  of  fact.  The  defendant  Dutch, 
therefore,  had  no  right  to  use  the  wall  to  the  exclusion  of  the  plaintiffs' 
vessels,  and  having  done  so,  and  having  refused  to  remove  his  vessel 
when  requested,  he  is  guilty  of  a  violation  of  the  plaintiffs'  rights,  for 
which  they  may  recover,  in  this  action  of  tort,  whatever  damages  they 
sustained  by  reason  of  the  tortious  acts  of  the  defendant.  The  ruling 
of  the  Superior  Court  to  this  effect  was  correct. 

The  defendant  contended,  and  asked  the  court  to  rule,  "that  the 
damage  alleged  and  proved  is  too  remote  from  the  act  complained  of, 
and  is  not  the  proximate  consequence  of  the  same  sufficiently  in  law 
to  render  the  defendants  or  any  of  them  liable  therefor." 

The  facts  bearing  upon  this  question  are  as  follows :  At  the  time  of  the 
accident,  the  plaintiffs  had  several  vessels  engaged  in  bringing  and 
laying  stone  for  the  construction  of  the  sea  wall.  Most  of  the  wall 
had  been  built  only  up  to  low  water  mark,  but  the  plaintiffs,  in  the  be- 
ginning of  the  work,  had  built  about  two  hundred  feet  of  the  wall 
to  a  height  of  thirteen  feet  above  low  water  mark,  for  the  purpose  of 
furnishing  a  safer  place  to  lay  their  vessels  at  in  case  of  easterly  winds 
or  heavy  seas.  They  could  lay  two  of  their  vessels  behind  this  high 
part  of  the  wall.  On  the  night  of  the  accident  this  part  of  the  wall 
was  wholly  occupied  by  the  defendant's  schooner,  so  that  there  was  no 
room  for  any  other  vessel.  The  plaintiffs  had  five  vessels  at  the  sea 
wall.  About  five  o'clock  it  began  to  blow  strongly  from  the  eastward; 
the  storm  increased  during  the  night,  and  about  eleven  o'clock  two 


f 


SECT.    III.]  DERRY    l\    FLITNER.  173 

of  the  plaintiffs'  vessels  were  sunk.     The  court  found  as  a  fact  that 
the  storm  was  such  as  is  not  uncommon  in  this  climate. 

The  defendant  contends  that  the  injury  to  the  plaintiffs  was  the 
result  of  the  storm  solely,  and  that  he  is  not  liable  for  it,  although 
his  exclusion  of  the  plaintiffs'  vessels  from  a  place  of  safety  behind  the 
wall  was  tortious.  The  cases  upon  this  subject  are  numerous.  The  rule 
is  well  settled  and  is  constantly  applied  in  this  Commonwealth,  that 
one  who  commits  a  tortious  act  is  liable  for  any  injury  which  is  the 
natural  and  probable  consequence  of  his  misconduct.  He  is  liable  not 
only  for  those  injuries  which  are  caused  directly  and  immediately 
by  his  act,  but  also  for  such  consequential  injuries  as,  according  to  the 
common  experience  of  men,  are  likely  to  result  from  his  act.  And  he 
is  not  exonerated  from  liability  by  the  fact  that  intervening  events  or 
agencies  contribute  to  the  injury.  The  true  inquiry  is  whether  the 
injury  sustained  was  such  as,  according  to  common  experience  and  the 
usual  course  of  events,  might  reasonably  be  anticipated.  A  few 
of  the  more  recent  cases  are  cited.  Hoadley  v.  Northern  Transporta- 
tion Co.,  115  Mass.  304;  Metallic  Compression  Casting  Co.  v.  Fitch- 
burg  Railroad,  109  Mass.  277;  Salisbury  v.  Herchenroder,  106  Mass. 
458;  Wellington  v.  Downer  Kerosene  Oil  Co.,  104  Mass.  64;  Carter 
V.  Towne,  98  Mass.  567;  McDonald  v.  Snelling,  14  Allen,  290. 

Applying  these  principles  to  the  case  at  bar,  we  are  of  opinion 
that  the  injury  to  the  plaintiffs'  vessels  by  the  storm  was  an  injury 
which  was  reasonably  to  be  apprehended  as  a  consequence  of  their 
exclusion  from  the  place  of  safety  furnished  by  the  sea  wall.  The  wall 
was  built  for  protection  against  storms.  It  is  found  as  a  fact  that 
the  storm  which  arose  was  not  an  uncommon  one  in  this  climate.' 
It  was  reasonably  to  be  anticipated  that  such  a  storm  might  arise,  and 
that  vessels  exposed  to  it  would  be  in  danger  of  injury.  The  wrongful 
act  of  the  defendant,  in  taking  and  retaining  exclusive  possession  of 
this  place  of  safety,  exposed  the  plaintiffs'  vessels  to  the  dangers  of  the 
storm,  and  the  injury  which  they  sustained  was  the  natural  and  prob- 
able consequence  of  this  wrongful  act.  Within  the  rule  above  stated, 
the  defendant  is  liable  for  such  injury. 

The  defendant  now  contends  that,  as  the  plaintiffs  had  four  vessels 
which  they  were  accustomed  to  lay  at  the  place  occupied  by  his  schooner, 
it  was  not  and  cannot  be  shown  that  the  two  vessels  which  were  sunk 
would  have  occupied  the  place  if  his  schooner  had  not  been  there.  This 
presents  a  question  of  fact  and  not  of  law\  It  was  a  fact  capable  of 
proof  with  such  reasonable  certainty  as  the  law  requires,  that  the  two 
vessels  sunk  would  have  been  placed  there  for  safety.  The  presiding 
judge  has  found  this  fact  in  favor  of  the  plaintiffs.  There  is  some 
e\'idence  reported  in  the  bill  of  exceptions  tending  to  prove  tliis  fact, 
and  it  does  not  appear  that  all  the  e\-idence  is  reported.  We  cannot 
say  as  matter  of  law  that  the  finding  was  erroneous. 

The  same  considerations  dispose  of  the  only  other  point  taken  by 


174  JACKSON   V.    WISCONSIN    TELEPHONE    CO.  [CHAP.    III. 

the  defendant,  \iz.,  that  it  was  not  proved  that  the  two  vessels  sunk 
would  have  been  entirely  safe  if  they  had  occupied  the  place  behind 
the  sea  wall.  This  is  a  question  of  fact  upon  which  there  was  some 
e\idence,  and  we  cannot  revise  the  finding  of  the  court  upon  it.^ 

Exceptions  overruled. 

JACKSON  V.  WISCONSIN  TELEPHONE  CO. 

Supreme  Court  of  Wisconsin,  1894. 

[Reported  88  Wis.  243.] 

Appeal  from  the  Circuit  Court  for  Chippewa  County. 

This  action  is  brought  to  recover  damages  for  a  barn  and  its  con- 
tents, burned,  as  plaintiff  claims,  by  reason  of  defendant's  negligence. 
Near  the  city  of  P]au  Claire  there  is  a  plateau  about  eighty  feet  above 
the  level  of  the  surrounding  country.  In  August,  1889,  two  large  frame 
buildings,  about  325  feet  distant  from  each  other,  stood  upon  this, 
plateau,  one  being  a  county  fair  building  known  as  Floral  Hall,  and  the 
other  being  the  barn  of  the  plaintiff.  These  buildings  were  about  the 
same  height,  and  upon  the  top  or  ridge  of  each  there  stood  a  flagpole 
or  mast  twenty  to  thirty  feet  in  height.  Prior  to  the  year  1888  the  de- 
fendant had  constructed  a  telephone  line  from  the  highway  running 
past  the  fair  grounds.  In  September,  1888,  the  defendant  placed  a 
telephone  in  F'loral  Hall,  and  connected  it  with  No.  12  wire  with 
its  telephone  line  on  the  highway.  This  connecting  wire  ran  from  the 
highway  first  to  the  flagpole  upon  plaintift's  barn,  and  was  there  tied  to 
the  pole;  from  thence  it  ran  directly  to  Floral  Hall.  There  was  a  dispute 
as  to  the  place  where  this  wire  was  fastened  to  Floral  Hall,  the  plain- 
tiff's witnesses  testifying  that  it  was  fastened  directly  to  the  flag- 
staff upon  Floral  Hall,  a  foot  or  so  above  the  roof,  while  the  defendant's 
witnesses  claim  that  it  was  attached  to  nails  on  the  side  of  the  building. 
The  plaintiff  gave  no  permission  to  attach  the  wire  to  his  barn,  and 
testified  that  he  had  no  knowledge  that  it  was  so  attached.  A  ground 
wire  from  the  telephone  in  the  interior  of  Floral  Hall  ran  up  to  the 
flagstaff,  and  thence  a  distance  of  about  376  feet  to  the  ground,  where ' 
it  was  attached  to  an  iron  water  pipp.  Some  time  in  the  fall  of  1888  the 
defendant  took  out  the  telephone  from  Floral  Hall,  together  with  the 
insulated  wire  in  the  interior  of  the  building.  The  ground  wire  was  left 
intact,  and  so  was  the  wire  from  Floral  Hall  to  the  barn.  The  wire 
from  the  highway  to  Jackson's  barn  was  taken  down,  but  it  was  claimed 
by  the  plaintift's  witnesses  that  a  considerable  piece  of  said  wire  at  the 
barn  end  thereof  was  left  resting  upon  the  roof  of  the  barn. 

On  the  night  of  the  20th  day  of  August,  1889,  there  was  considerable 
rain.    At  about  4  o'clock  in  the  morning  there  was  a  flash  of  lightning, 

1  See  (iran.i  \'alley  Irr.  Co.  v.  Pitzer,  14  Colo.  App.  123,  59  Pac.  420;  Smith  v. 
Faxon,  1.5(5  Mass.  589,  31  X.  E.  687;  Bonner  ».  Wingate,  78  Tex.  -333,  14  S.  W.  790. 
—  Ed. 


SECT.    III.]  JACKSON   T.   WISCONSIN   TELEPHONE    CO.  175 

which  was  described  by  the  witnesses  as  a  bhnding  flash,  and  which 
was  thought  by  them  to  have  descended  upon  F'loral  Hall.  In  a  few 
minutes  the  roof  of  plaintiff's  barn  was  in  flames,  and  the  barn  and  its 
contents  were  destroyed.  Two  men  were  sleeping  in  a  shed  or  build- 
ing upon  the  fair  ground,  and  they  immediately  went  to  the  barn,  and 
testify  that  the  flagpole  upon  Floral  Hall  was  completely  shattered, 
while  the  flagpole  upon  the  barn  was  untouched.  The  plaintiff's 
claim  is  that  the  lightning  struck  Floral  Hall,  and  was  conducted  by  the 
wire  to  plaintiff's  bam,  and  set  it  on  fire,  and  that  the  defendant  was 
negligent  in  lea\'ing  the  wire  thus  attached  to  the  barn.  Much  ex- 
pert evidence  was  adduced  on  both  sides  as  to  the  probability  of  light- 
ning passing  over  such  a  wire  and  destroying  the  barn.  A  motion  for 
non-suit  was  overruled,  as  was  also  a  motion  to  direct  a  verdict  for 
defendant. 

The  jury  returned  a  special  verdict,  finding:  First,  that  the  defendant 
connected  the  plaintiff's  barn  with  Floral  Hall  by  means  of  a  telephone 
wire  attached  to  the  flagstaff  of  the  barn  and  to  the  flagstaff  on  Floral 
Hall,  without  any  intermediate  attachment;  second,  that  defendant 
left  the  wire  so  located  on  the  plaintiff's  barn  that  a  portion  of  the  same 
rested  on  the  roof;  third,  that  the  barn  was  thereby  subjected  to  danger 
of  being  destroyed  by  fire  caused  by  lightning  electricity  passing  over 
such  w^re  from  Floral  Hall  to  the  barn;  fourth,  that  the  fire  was  caused 
by  lightning  electricity  so  passing  over  said  wire;  fifth,  that  in  so  leav- 
ing the  barn  connected  with  Floral  Hall  the  defendant's  servants 
were  guilty  of  want  of  ordinary  care;  sixth,  that  such  want  of  ordinary 
care  was  the  proximate  cause  of  fire;  seventh,  that  this  result  was  one 
which  a  person  reasonably  well  skilled  in  the  defendant's  business  might 
reasonably  have  expected  would  probably  occur;  eighth,  that  the  plain- 
tiff did  not  give  defendant  permission  to  attach  the  wire  to  his  barn; 
ninth,  that  plaintiff  did  not  know,  before  the  fire,  that  his  barn  was 
connected  wath  Floral  Hall  by  the  wire;  tenth,  that  he  did  not  know 
of  the  danger  before  the  fire;  eleventh,  that  the  plaintiff's  damages  were 
S9,258.  From  judgment  for  the  plaintiff  upon  this  verdict  the  de- 
fendant appeals. 

WiNSLOW,  J.  It  was  strenuously  and  ably  argued  by  the  appel- 
lant's counsel  that  the  evidence  did  not  show  that  the  negligent  act 
of  defendant  was  the  proximate  cause  of  the  burning  of  plaintiff's 
barn.  The  rule  is  well  settled  in  this  state  that,  in  order  to  render  a 
negligent  act  the  proximate  cause  of  an  injury,  it  must  appear  "that 
the  injury  was  the  natural  and  probable  consequence  of  the  negligence 
or  wrongful  act,  and  that  it  ought  to  have  been  foreseen  in  the  light 
of  the  attending  circumstances."  Atkinson  v.  Goodrich  Transp.  Co. 
60  Wis.  141,  156;  MarN-in  v.  C,  M.  &  St.  P.  R.  Co.  79  Wis.  140.  The 
jury  found  all  the  elements  necessary  to  constitute  the  negligent 
act  of  the  defendant  the  proximate  cause  of  the  burning  of  the  barn 
within  this  rule,  and  the  c^uestion  is  whether  the  evidence  justifies  such 


176  JACKSON    r.    WISCONSIN   TELEPHONE   CO.  [CHAP.    III. 

finding.  It  is  said  that  the  striking  of  a  building  by  Hghtning  is  a  very 
infrequent  occurrence,  and  that  it  could  not  be  reasonably  anticipated 
by  any  one.  It  is  true  that  the  number  of  buildings  which  are  struck 
by  lightning,  as  compared  with  the  whole  number  of  buildings  in  any 
given  locality,  is  very  small;  but  this  fact  by  no  means  seems  to  us  to 
be  the  final  or  controling  test  of  the  question  of  probability.  In  this 
case  there  was  a  building  situated  upon  a  high  plateau  from  eighty 
to  ninety  feet  above  the  level  of  the  surrounding  country,  with  a 
flagpole  upon  the  roof  about  twenty-five  feet  in  height.  Now,  there 
are  some  facts  of  common  knowledge  known  to  every  reasonable  per- 
son who  has  passed  the  age  of  childhood.  Among  these  facts  are  that 
in  this  latitude  there  are  at  certain  seasons  of  the  year  frequent 
and  violent  thunderstorms;  that  at  such  times  the  clouds  are  heavily 
charged  with  electricity,  which  constantly  finds  its  way  to  the  earth  iri 
what  we  call  strokes  of  lightning;  that  these  lightning  strokes,  in  the 
great  majority  of  cases,  strike  prominent  objects,  such  as  trees,  poles, 
and  high  buildings,  and  follow  them  to  the  ground;  that  fire  is  fre- 
quently the  result  of  such  strokes.  These  facts  are  well  known  to  all 
persons,  and  no  proof  of  them  by  expert  e\'idence  is  necessary.  Can 
we  say,  as  matter  of  law,  in  \aew  of  these  well-knowm  facts,  that  it  was 
entirely  improbable  that  a  building  situated,  as  Floral  Hall  was,  upon 
the  highest  ground  in  the  vicinity,  with  a  flagpole  upon  it,  should  be 
struck  by  a  discharge  of  lightning,  simply  because  many  buildings 
in  such  situations  escape  the  stroke  for  years?    We  think  not.^ 

By  the  court.—  Judgment  affirmed.'^ 

Newman,  J.  The  cause  of  damages  is  proximate  only  when  it 
might  reasonably  have  been  expected  by  a  man  of  ordinary  intelli- 
gence and  prudence  that  such  damages  would  result  from  that  cause. 
Atkinson  v.  Goodrich  Transp.  Co.,  60  Wis.  141.  The  damages,  as  a 
consequence  of  the  negligent  act  or  omission,  must  be  both  natural  and 
probable.  Barton  v.  Pepin  Co.  Agr.  Society,  83  Wis.  19.  It  cannot  be 
said  of  any  particular  building  that  it  is  probable  that  it  will  be  struck 
by  lightning.  The  chances  are  very  largely  against  it.  It  could  not 
have  been  foreseen  as  likely  to  happen  that  either  Floral  Hall  or  the 
plaintift's  barn  would  be  struck  by  lightning.  That  might  be,  in  the 
course  of  nature,  but  could  not  be  anticipated  as  probable.  The  neg- 
lect of  the  defendant  to  remove  the  wire  did  not  increase  the  danger 
or  probability  that  either  building  would  be  struck.  At  most,  it  only 
rendered  it  possible  that,  in  case  either  was  struck,  fire  might  be 
communicated  to  the  other.  It  could  not  be  the  cause  of  either  build- 
ing being  struck.  It  was  a  condition,  rather  than  the  cause,  of  the  dam- 
ages.   If  a  cause  at  all,  it  was  a  remote  cause. 

PiNNEY,  J.   I  concur  in  the  foregoing  opinion  by  Mr.  Justice  Newman. 

1  Part  of  theopinion  is  omitted.  —  Ed. 

2  See  Beaming  v.  South  Bend  Elec.  Co.,  45  Ind.  .^pp.  261,  90  N.  E.  786;  San 
Marco.s  E.  L.  ik  P.  Co.  v.  Compton,  48  Tex.  Civ.  App.  586,  107  S.  W.  1151.  — Ed. 


SECT.    III.]     BURK   V.    CRE.OIERY    PACKAGE   MANUFACTURING   CO.     177 

BURK    V.    CREAMERY    PACKAGE    MANUFACTURING    CO. 
Supreme   Court   of   Iowa,  1905. 

[Reported  126  la.  730.] 

Deemer,  J.  Defendant  is  a  corporation  engaged  in  the  manufacture 
and  sale  of  creamery  supplies,  fixtures,  etc.,  at  the  city  of  Waterloo. 
It  keeps  for  sale,  and  sells,  sulphuric  acid,  which  is  extensively  used 
in  all  creameries.  On  or  about  January  26,  1903,  it  sold  at  retail 
to  one  Riedel  a  one-gallon  jug  of  sulphuric  acid,  but  failed  to  label  the 
same  as  required  by  statute,  or  to  indicate  in  any  manner  upon  the  pack- 
age that  it  contained  a  deadly  poison.  Riedel  owned  and  operated 
what  was  known  as  the  "Crane  Creek  Creamery,"  in  a  rural  commu- 
nity in  Black  Hawk  County,  and  he  took  the  jug  containing  the  acid  to 
his  said  creamery,  and  placed  it  upon  a  shelf  in  one  of  the  rooms  thereof. 
It  was  the  custom  at  this  creamery  to  put  buttermilk  in  jugs  similar  to 
the  one  in  which  the  acid  was  placed,  for  the  use  of  customers  and 
employees  of  the  creamery,  who  were  invited  and  permitted  to  drink 
the  milk  placed  therein.  Harry  O.  Burk,  plaintiff's  minor  son,  who 
was  then  seventeen  years  of  age,  was  lawfully  at  the  creamery  on  the 
9th  day  of  February,  1903,  and,  seeing  the  jug  containing  the  acid,  asked 
an  employee  at  the  creamery  if  he  could  have  a  drink  of  buttermilk. 
The  employee,  not  knowing  that  the  boy  had  his  eye  on  the  sulphuric 
acid  jug,  but  supposing  that  he  was  refen'ing  to  another  close  at  hand, 
which  did  contain  buttermilk,  told  him  that  he  could,  and  invited 
him  to  drink  of  the  milk.  Burk  went  to  the  jug  containing  the  acid, 
and,  supposing  that  it  contained  buttermilk,  drank  therefrom,  and, 
as  a  result  thereof,  died  the  next  day.  The  acid  was  taken  about  two 
o'clock  in  the  afternoon  of  a  bright  day,  and  the  room  in  which  the  jug 
was  kept  was  well  lighted.  Burk's  eyesight  was  good  and  he  could 
easily  have  seen  a  label  had  one  been  placed  upon  the  jug.  Cream- 
eries universally  use  sulphuric  acid  for  the  purpose  of  testing  milk 
and  cream  for  butter  fat,  and  this  the  defendant  company  well  knew. 
The  jug  containing  the  acid  was  a  little  larger  than  the  buttermilk 
jug,  but  both  were  one-gallon  white  jugs,  and  there  was  nothing  in 
general  appearances  to  distinguish  one  from  the  other.  Defendant 
knew  that  it  was  the  custom  of  all  creameries  to  provide  buttermilk 
for  people  to  drink,  and  that  patrons  thereof  carried  the  same  away 
for  use  at  their  homes. 

Code,  §  4976,  provides,  in  substance,  that  if  any  person  deliver  to 
another  any  poisonous  liquor  or  substance  without  ha\ing  the  word 
"poison,"  and  the  true  name  thereof,  written  or  printed  upon  a  label 
attached  to  or  affixed  upon  the  vial,  box,  or  parcel  containing  the 
same,  he  shall  be  guilty  of  a  misdemeanor.    And  §§  2588  and  2593 


178         BURK  V.  CREAMERY  PACKAGE  MANUFACTURING  CO.     [cHAP.  III. 

also  prohibit  the  sale  of  poisons,  except  that  the  same  be  labeled  as 
therein  required.  Violation  of  such  statutes  is  universally  held  to  be 
negligent.     Ives  v.  Weldon,  114  Iowa,  476,  and  cases  cited. 

But  defendant  contends  that  this  negligence  was  not  the  proximate 
cause  of  the  injury  to  the  plaintiff's  son.  It  was,  of  course,  incum- 
bent upon  the  plaintiff  to  show,  not  only  a  violation  of  one  or  the  other 
of  these  sections  of  the  Code,  but  also  that  such  \aolation  was  the 
proximate  cause  of  the  injury  and  death  of  his  son.  That  matter 
was  submitted  to  the  jury  under  proper  instructions,  and  it  found  for 
the  plaintiff  on  this  issue. 

But  it  is  said  that  Riedel,  the  owner  of  the  creamery,  was  also 
guilty  of  negligence  in  placing  the  jug  in  the  creamery  at  the  place  he 
did,  that  this  negligence  was  the  approximate  cause  of  the  injury  to 
plaintiff's  son,  and  that  the  defendant  had  no  reason  to  apprehend 
or  anticipate  any  negligence  on  the  part  of  the  purchaser  of  the  acid. 
As  said  in  the  Ives  Case,  supra,  these  statutes  were  made  for  the 
protection  of  all  persons  in  the  State,  and  to  warn  all  that  the  sub- 
stance they  are  handling  is  dangerous,  and  that  its  use  requires  con- 
stant care.  Defendant,  as  we  have  said,  knew  of  the  custom  which 
prevailed  among  creameries,  knew  that  buttermilk  is  kept  there  for  the 
use  of  patrons,  and  that  sulphuric  acid  is  used  in  all  creameries.  It 
knew,  or  should  have  known,  that  anyone  lawfully  about  the  creamery 
was  likely  to  pick  up  tliis  jug,  and  to  use  the  same  for  any  legitimate  pur- 
pose. It  owed  a  duty  to  anyone  who  might  rightfully  handle  or  use 
the  jug  in  the  ordinary,  usual,  or  customary  manner.  This  jug  had 
to  be  kept  about  the  creamery,  and  there  was  no  statutory  or  other  ob- 
ligation on  the  part  of  the  creamery  owner  to  keep  it  under  lock  and 
key.  Of  course,  if  he  knew  that  it  was  not  labeled,  or  by  the  use  of 
ordinary  care  should  have  known  of  that  fact,  he  would  be  rec^uired, 
on  account  of  the  dangerous  character  of  the  acid,  to  use  due  care  to 
protect  all  persons  who  might  rightfully  come  in  contact  therewith. 
But  failure  on  the  part  of  the  purchaser  to  do  tliis  would  not  neces- 
sarily excuse  the  vender  for  his  violation  of  law. 

But  defendant  insists  that  it  had  no  reason  to  anticipate  the  wTong- 
ful  or  negligent  acts  of  the  manager  of  the  creamery,  and  that  it  is  for 
that  reason  not  liable  for  the  consequences  thereof.  While  there  are 
some  loose  expressions  in  the  books  to  the  effect  that  one  is  not  liable 
for  negligence  unless  the  results  of  his  acts  might  reasonably  have  been 
foreseen  by  him,  the  true  doctrine,  as  we  understand  it,  is  that  it  is  not 
necessary  to  a  defendant's  liability  that  the  consequences  of  his  negli- 
gence should  have  been  foreseen.  It  is  sufficient  if  the  injuries  are  the 
natural,  though  not  the  necessary  or  ine\'itable,  result  of  the  WTong; 
such  injuries  as  are  likely,  under  ordinary  circumstances,  to  ensue 
from  the  act  or  omission  in  question.  The  test,  after  all,  is,  would 
ordinary  prudence  have  suggested  to  the  person  sought  to  be  charged 
with  negligence  that  his  act  or  omission  would  probably  result  in  in- 


SECT.  III.]     BURK  V.  CREAJVIEIIY  PACKAGE  MANUFACTURING  CO.  179 

jury  to  someone?  The  particular  result  need  not  be  such  as  that  it 
should  have  been  foreseen.  Palmer  v.  R.  R.  Co.,  124  Iowa,  424; 
Hazzard  v.  City,  79  Iowa,  106;  Doyle  v.  R.  R.  Co.,  77  Iowa,  607; 
Osborne  v.  Van  Dyke,  113  Iowa,  557.  In  applying  this  doctrine  to  cases 
where  there  is  an  interv^ening  agency,  it  is  generally  held  that  the  in- 
terv^ening  act  of  an  independent  voluntary  agent  does  not  arrest  cau- 
sation, nor  relieve  the  person  doing  the  first  wrong  from  the  consequen- 
ces thereof,  if  such  intervening  act  was  one  which  would  ordinarily 
be  expected  to  flow  from  the  act  of  the  first  wrongdoer.  Lane  v. 
Atlantic,  111  Mass.  136. 

\Yhere   several   proximate   causes  contribute   to   an   accident,   and 
each  is  an  efficient  cause,  without  the  operation  of  which  the  accident 
would  not  have  happened,  it  may  be  attributed  to  all  or  any  of  the 
causes;  but  it  cannot  be  attributed  to  a  cause  unless  without  its  oper- 
ation the  accident  woiild  not  have  happened.     These  rules  have  full 
support  in  our  cases.    Walrod  v.  Webster  Co.,  110  Iowa,  349;  Harvey 
X.  Clarinda,  111  Iowa,  528;  Buehner  v.  Creamery  Co.,  124  Iowa,  445 
Palmer  v.  R.  R.  Co.,  124  Iowa,  424;  Gould  v.  Schermer,  101  Iowa,  582 
Liming  v.  R.  R.  Co.,  81  Iowa,  246;  Schnee  v.  City,  122  Iowa,  459 
Ives  V.  Weldon,  supra. 

Referring  now  to  the  facts.  The  jury  was  fully  justified  in  finding 
that  but  for  defendant's  act  or  omission  the  accident  in  question  would 
not  have  happened.  Under  the  testimony,  the  injury  to  plaintiff's 
son  might  well  have  been  found  to  be  the  direct  and  proximate  result 
of  defendant's  failure  to  label  the  jug  containing  the  poison.  Had  it 
been  labeled,  the  accident  would  not  have  happened,  even  though 
the  managers  of  the  creamery  may  have  been  negligent  in  placing  it 
where  they  did.  Moreover,  had  it  been  properly  labeled,  the  jury  might 
well  have  concluded  that  there  would  have  been  no  negligence  on  the 
part  of  the  creamery  managers  in  placing  it  where  they  did. 

The  direction  to  plaintiff's  son  to  drink  out  of  a  jug  w^as  not  of  itself 
negligence.  The  person  giving  the  permission  did  not  know  that  the 
boy  had  in  mind  the  jug  containing  the  acid,  and  there  is  nothing  to 
show  that  this  person  e\en  knew  there  was  a  jug  there  containing  acid. 
It  was  a  question  for  the  jury,  under  proper  instructions,  to  determine 
whether  or  not  defendant's  negligence  was  the  proximate  cause  of  the 
accident.  See  cases  hitherto  cited.  The  instructions  given  by  the  trial 
couit  on  that  subject  were  correct,  and  with  the  finding  of  the  jury 
thereunder  we  are  not  disposed  to  interfere. 

The  defendant  might  reasonably  have  foreseen  that  its  act  or  omis- 
sion was  likely  to  cause  injury  to  someone  who  might  rightfully  handle 
the  jug,  and  it  is  not  enough  for  it  to  say  that  it  could  not  reasonaljly 
have  foreseen  the  exact  mishap.  None  of  the  cases  cited  and  relied 
upon  by  appellant  announce  a  contrary  doctrine,  although  in  some  of 
them  expressions  are  used  which,  in  a  measure  at  least,  give  color 
to  its  propositions.     With  reference  to  these,  and  to  all  other  cases 


ISO  BELL   V.    ROCHEFORD.  [CHAP.    III. 

bearing  upon  the  subject,  it  may  be  said  that  no  one  has  as  yet  given 
a  very  satisfactory  definition  of  proximate  cause.  Indeed,  one  must 
of  necessity  look  to  practical  distinctions  on  this  subject,  rather  than 
to  merely  academic  or  theoretical  ones,  and,  after  all  is  said,  each  case 
must  be  decided  largely  on  the  special  facts  belonging  to  it.  At  most, 
the  act  of  Riedel  was  a  concurring  and  cooperating  fault,  and  not  in 
itself  the  producing  cause  of  the  injury.' 

The  principal  point  in  the  case  is  the  doctrine  of  proximate  cause  as 
applied  to  the  facts  disclosed  by  the  record.  We  think  there  was  suffi- 
cient testimony  to  take  the  case  to  the  jury  on  this  proposition. 

There  is  no  error  in  the  record,  and  the  judgment  is  affirmed. 


BELL  V.  ROCHEFORD. 
Supreme  Court  of  Nebraska,  1907. 

[Reported  78  Neb.  310.] 

The  defendants  were  independent  contractors  engaged  in  the  erec- 
tion of  a  power  house  for  the  Omaha  Street  Railway  Company,  and 
were,  at  the  time  of  the  accident,  putting  in  a  concrete  floor  in  the 
second  story.  That  portion  of  the  floor  at  the  point  where  the  acci- 
dent occurred  was  above  a  room  9  by  40  feet,  with  a  10  foot  ceiling. 
To  support  the  concrete  steel  I  beams  were  placed  crosswise  of  the 
room  at  a  distance  of  8  or  9  feet  apart.  They  rested  at  either  end  upon 
a  concrete  wall,  in  which  openings  were  left  for  that  purpose.  The 
steel  beams  were  from  4  to  6  inches  wide  at  the  base  and  top,  10  inches 
deep,  and  weighed  150  pounds.  The  pockets  into  which  the  ends  were 
placed  were  about  10  inches  wide.  For  the  purpose  of  holding  the 
concrete  in  position  until  it  hardened,  wooden  forms  were  built  so 
that  they  might  be  removed  after  the  concrete  became  self-supporting. 
These  forms  were  constructed  by  placing  a  2-by-l 2-inch  plank  length- 
wise under  each  I  beam,  and  were  held  in  place  by  means  of  4-by-4 
inch  pieces  extending  from  the  lower  floor  to  the  under  side  of  the 
plank,  lea\nng  a  margin  of  from  3  to  4  inches  on  either  side  of  the  steel. 
The  space  between  two  I  beams  was  called  a  section.  Other  planks 
were  then  placed  crosswise  of  the  section,  the  ends  resting  upon  the 
edge  of  the  2-by-12-inch  pieces. 

Wooley  called  to  the  plaintiff  to  come  and  assist  him  in  putting 
this  last  plank  in  place.  Wooley  was  at  the  west  side  of  the  form  and 
the  plaintiff  at  the  east.  The  plank  selected  was  a  little  wade  for  the 
opening,  and  in  order  to  crowd  it  into  place  one  edge  of  this  plank 
and  the  edge  of  an  adjoining  plank  were  raised,  placed  together  in  a 
V  shape,  and  the  plaintiff,  in  a  stooping  position,  was  attempting  to 

'  The  discussion  of  other  alleged  errors  is  omitted.  —  Ed. 


SECT,    III.]  BELL   V.    ROCHEFORD.  181 

crowd  it  into  place.  His  weight  and  the  pressure  caused  the  2-by-12 
on  the  sid^  where  he  was  at  work  to  tip,  the  steel  beam  turned  over, 
and  the  form  of  that  entire  section  fell  with  the  plaintiff  into  the  base- 
ment below,  resulting  in  the  injury  on  account  of  which  damages  are 
claimed.^ 

Calkins,  C.  This  cause  was  submitted  upon  an  oral  argument 
of  a  motion  for  a  rehearing.  .  .  .  The  amended  petition  described  the 
construction  of  the  forms,  set  forth  the  particular  facts  which  it  was 
claimed  made  the  structure  insecure,  and  alleged  that  the  plaintiff, 
in  obedience  to  the  direction  of  the  defendant's  foreman,  went  upon  the 
structure,  and,  while  engaged  in  his  work  thereon,  was  by  the  falling 
of  the  structure  precipitated  to  the  floor  below,  thereby  suffering  the 
injuries  complained  of.  If  we  understand  the  contention  of  the  defend- 
ant's counsel,  it  is  that,  since  the  petition  does  not  state  that  the  weight 
of  the  plaintiff  and  his  efforts  to  crowd  the  plank  in  place  caused  the 
collapse  of  the  section,  it  fails  to  allege  the  proximate  cause  of  the  acci- 
dent. The  argument  of  the  defendant  proceeds  upon  the  theory  that 
placing  the  weight  of  the  plaintiff  upon  the  structure,  and  his  effort 
to  put  the  plank  in  place,  was  the  proximate  cause  of  the  accident.  It 
is  the  same  as  if,  in  a  case  where  A,  owing  a  duty  to  B  to  construct  a 
bridge  in  a  safe  and  secure  manner,  negligently  leaves  it  unsafe  and  in- 
secure, and  B,  reK-ing  upon  its  apparently  safe  condition,  or,  as  in  this 
case,  upon  the  express  direction  of  A,  goes  upon  it  and  it  falls,  we 
should  say  that  the  proximate  cause  of  the  catastrophe  was  the  weight 
of  B,  and  not  the  negligence  of  A.  Such  is  not  the  law.  The  proximate 
cause  is  the  dominant  cause,  not  the  one  which  is  incidental  to  that 
cause,  its  mere  instrument,  though  the  latter  may  be  nearest  in  time 
to  the  injury.  Milwaukee  &  St.  P.  R.  Co.  v.  Kellogg,  94  U.  S.  469; 
Aetna  Fire  Ins.  Co.  v.  Boon,  95  U.  S.  117.  The  inquiry  must  be, 
says  Mr.  Justice  Strong,  "whether  there  was  any  intermechate  cause, 
disconnected  wdth  the  primary  fault  and  self-operating,  which  pro- 
duced the  injury."  It  is  clear  that  the  weight  of  the  plaintiff,  and  his 
efforts  to  place  the  plank,  was  not  such  intermediate  cause,  disconnected 
from  the  primary  fault  and  self-operating,  and  was  not,  therefore,  in 
the  meaning  of  the  term  as  applied  in  the  law  of  negligence,  the  proxi- 
mate cause  of  the  injury,  and  it  was  neither  necessary  nor  proper 
to  plead  it  as  such  in  the  petition. 

We  are  therefore  of  the  opinion  that  the  motion  for  a  rehearing 
should  be  overruled,  and  we  so  recommend. 

Jackson,  C,  concurs. 

By  the  court:  For  the  reasons  stated  in  the  foregoing  opinion,  the 

motion  for  a  rehearing  is  r»  ?  j  ■> 

*  (Jverrulea/ 

^  This  statement  of  the  facts  is  taken  from  the  report  of  the  original  hearing,  78 
Neb.  304.— Ed. 

2  See  also  Commonwealth  Electric  Co.  v.  Rose,  214  111.  545,  73  N.  E.  780;  Knapp 
V.  Sioux  City  &  P.  Ry.,  65  Iowa,  91,  21  N.  W.  198;  Buckner  v.  Stock  Yards  H.  & 
M.  Co.,  221  Mo.  700,  120  S.  W.  766;  Lawence  v.  Heidhreder  Ice  Co.,  119  IMo. 
App.  316,  93  S.  W.  897;  Ray  v.  Pecos  &  N.  T.  Ry.,  40  Tex.  Civ.  App.  99,  88  S.  W. 
466.— Ed. 


182  REGINA    V.    MITCHELL.  [cHAP.    III. 

REGINA   V.  MITCHELL. 
Crown  Case  Kkskrved.     1840. 

[Rrjiurted  •>  Mouili/,  120.] 

The  prisoner  Catlieriue  Michael  was  tried  ])efore  Mr.  Barou  Aider- 
son  at  the  Central  Criminal  Court  in  April.  1.^40  (Mr.  Justice  Littledale 
being  present),  for  the  wilful  murder  of  George  Michael,  an  infai}t  of 
the  age  of  nine  months,  by  administering  poison. 

It  appeared  in  evidence  that  the  prisoner,  on  the  27th  da}^  of  March 
last,  delivered  to  one  Sarah  Stephens,  with  wliom  the  child  was  at 
nurse,  a  quantity  of  laudanum,  about  an  ounce,  telling  the  said  Sarah 
Stephens  that  it  was  proper  medicine  for  the  child  to  take,  and  direct- 
ing her  to  administer  to  the  child  every  night  a  teaspoonful  thereof ; 
that  such  a  quantity  as  a  teaspoonful  was  quite  sufficient  to  kill  a  child  ; 
and  that  the  prisoner's  intention,  as  shown  by  the  finding  of  the  jury, 
in  so  delivering  the  laudanum  and  giving  such  directions  as  aforesaid, 
was  to  kill  the  child. 

That  Sarah  Stephens  took  home  with  her  the  laudanum,  and  thinking 
the  child  did  not  require  medicine  had  no  intention  of  administering  it. 
She,  however,  not  intending  to  give  it  at  all,  left  it  on  the  mantelpiece 
of  her  room,  which  was  in  a  different  house  from  where  the  prisoner 
resided,  she,  the  prisoner,  then  being  a  wet  nurse  to  a  lady  ;  and  some 
days  afterwards,  that  is,  on  the  31st  of  March,  a  little  boy  of  the  said 
Sarah  Stephens,  of  the  age  of  five  years,  during  the  accidental  al)sence 
of  Sarah  Stephens,  who  had  gone  from  home  for  some  hours,  removed 
the  laudanum  from  its  place  and  administered  to  the  prisoner's  child 
a  much  larger  dose  of  it  than  a  teaspoonful,  and  the  child  died  in  con- 
sequence. 

The  jury  were  directed  that  if  the  prisoner  delivered  to  Sarah  Stephens 
the  laudanum,  with  intent  that  she  should  administer  it  to  the  child  and 
thereby  produce  its  death,  the  quantity  so  directed  to  be  administered 
being  sufficient  to  cause  death  ;  and  that  if  (the  prisoner's  original  in- 
tention still  continuing)  the  laudanum  was  afterwards  administered  by 
an  unconscious  agent,  the  death  of  the  child  under  such  circumstances 
was  murder  on  the  part  of  the  pi-isoner. 

They  were  directed  that  if  the  teaspoonful  of  laudanum  was  sufficient 
to  produce  death,  the  administration  by  the  little  boy  of  a  much  larger 
quantity  would  make  no  difference. 

The  jury  found  the  prisoner  guilty.  The  judgment  was  respited, 
that  the  opinion  of  the  judges  might  be  taken  whether  the  facts  above 
stated  constituted  an  administering  of  the  poison  by  the  prisoner  to 
the  deceased  child. 

This  case  was  considered  by  all  the  judges  (except  Gurney,  B.,  and 
Maule,  J.),  in  Piaster  term,  1840,  and  they  were  unanimously  of  opinion 
that  the  conviction  was  right. 


SECT.    III.]  LANE    V.    ATLANTIC   WORKS.  183 

\ 

LANE  V.  ATLANTIC  WORKS. 
Supreme  Judicial  Court  of  Massachusetts,  1872. 

[Reported  111   Mass.  136] 

Tort.  The  declaration  was  as  follows:  "And  the  plaintiff  says  that 
the  defendants  carelessly  left  a  truck,  loaded  with  iron,  in  Marion 
Street,  a  public  highway  in  Boston,  for  the  space  of  twenty  minutes 
and  more;  and  the  iron  on  said  truck  was  so  carelessly  and  negligently 
placed  that  it  would  easily  fall  off;  and  that  the  plaintiff  was  walking 
in  said  highway,  and  was  lawfully  in  said  highway,  and  lawfully  using 
said  highway,  and  in  the  exercise  of  due  care;  and  said  iron  upon  said 
truck  was  thrown  and  fell  therefrom  upon  the  plaintiff  in  consequence 
of  the  defendant's  carelessness,  and  the  plaintiff  was  severely  bruised 
and  crippled,"  &c.  The  answer  was  a  general  denial  of  the  plaintiff's 
allegations. 

At  the  second  trial  in  the  Superior  Court,  before  Devens,  J.,  after 
the  decision  reported  in  107  Mass.  104,  the  plaintiff  introduced  evi- 
dence that  the  defendants  left  a  truck  with  a  bar  of  iron  on  it  standing 
in  front  of  their  works  on  Marion  Street,  which  was  a  public  highway 
in  Boston;  that  the  iron  was  not  fastened,  but  would  easily  roll  off 
the  truck;  that  the  plaintiff,  then  seven  years  old,  and  a  boy  about  the 
same  age  named  James  Conners,  were  walking,  between  six  and  seven 
in  the  evening,  on  the  side  of  Marion  Street  opposite  the  truck  and  the 
defendants'  works;  that  Horace  Lane,  a  boy  twelve  years  old,  being 
near  the  truck,  called  to  them  to  come  over  and  see  him  move  it;  that 
the  plaintiff  and  Conners  said  they  would  go  over  and  watch  him  do  it ; 
that  they  went  over  accordingly ;  that  the  plaintiff  stood  near  the  truck 
to  see  the  wheels  move,  as  Horace  Lane  took  hold  of  the  tongue  of  the 
truck;  that  Horace  Lane  moved  the  tongue  somewhat;  that  the  iron 
rolled  off  and  injured  the  plaintiff's  leg;  and  that  neither  the  plaintiff 
nor  Conners  touched  the  iron  or  truck  at  all. 

The  plaintiff  was  also  allowed  to  introduce  in  evidence,  against 
the  defendants'  objection,  an  ordinance  of  the  city  of  Boston  prohibiting 
trucks  or  vehicles  of  any  kind,  whether  loaded  or  unloaded,  and  whether 
with  or  wnthout  horses,  from  stopping  in  any  street  more  than  five  min- 
utes without  some  proper  person  to  take  care  of  the  same,  or  more  than 
twenty  minutes  in  any  case. 

The  defendants  introduced  exadence  t^^nding  to  show  that  the  iron 
was  fastened  securely  on  the  truck,  which  was  drawn  from  the  defend- 
ants' works  into  the  street  at  four  o'clock  in  the  afternoon;  that  the 
boys  removed  the  fastenings;  that  Horace  Lane  placed  the  boys  one 
on  each  side  of  the  truck;  that  he  turned  the  tongue  of  the  truck  around; 
that  he  and  Conners  then  took  hold  of  the  iron  and  rolled  it  off;  that 
the  plaintiff  had  his  hands  on  the  iron  or  on  the  truck  when  the  iron 


184  LANE   V.    ATLANTIC   WORKS.  [cHAP.    III. 

rolled  off  on  to  him;  and  that  the  boys  were  engaged  in  the  common 
enterprise  of  rolling  off  the  iron  and  mo^^ng  the  truck..  There  was  no 
e\adence  that  Horace  Lane  had  any  lawful  pm-pose  or  object  in  mo\4ng 
the  truck,  or  any  right  to  meddle  with  it. 

The  defendants  requested  the  judge  to  give,  besides  other  rulings, 
the  following: 

"1.  Lea\ang  the  truck  in  the  street,  in  \dolation  of  a  city  ordi- 
nance, might  subject  the  defendants  to  a  fine,  but  this  violation  of  the 
pro\asions  of  the  ordinance  would  not  of  itself  alone  render  the  defend- 
ants liable  civilly  in  this  suit;  but  negligence  must  be  shown,  and  such, 
and  only  such,  as  is  averred  in  the  declai^ation. 

"  2.  In  order  to  make  the  plaintiff  a  participator  or  joint  actor  with 
Horace  Lane,  in  his  conduct  in  meddling  with  the  truck  for  an  unlawful 
purpose,  it  was  not  necessary  for  him  to  have  actually  taken  hold  of 
the  tongue,  or  the  iron,  or  the  truck,  to  help  or  aid  in  moving  it.  It 
is  enough  if  he  joined  with  him  in  a  common  object  and  purpose  volun- 
tarily, went  across  the  street  on  his  in^^tation  for  that  avowed  purpose, 
and  stood  by  the  truck  to  encourage  and  aid,  by  his  presence,  word  or 
act,  the  accomplishment  of  that  purpose. 

"3.  While  it  is  true  that  negligence  alone  on  the  part  of  Horace 
Lane,  which  contributed  to  the  injury  combining  with  the  defendants' 
negligence,  would  not  prevent  a  recovery,  unless  the  plaintiff's  negli- 
gence also  concurred  as  one  of  the  contributory  causes  also;  yet,  if  the 
fault  of  Horace  Lane  was  not  negligence,  but  a  voluntary  meddling 
with  the  truck  or  iron,  for  an  unlawful  purpose,  and  wholly  as  a  sheer 
trespass,  and  this  culpable  conduct  was  the  direct  cause  of  the  injury 
which  would  not  have  happened  otherwise,  the  plaintiff  cannot  recover." 

The  jiidge  did  not  give  the  ruling  requested,  but  gave  rulings,  which, 
so  far  as  they  are  now  material,  were  as  follows : 

"The  city  ordinance  is  proper  to  be  put  in  e\ndence  and  to  be  con- 
sidered by  the  jury  upon  the  question  of  negligence,  although  it  is  not 
conclusive  proof  that  the  defendants  were  in  point  of  fact  negligent 
in  the  act  of  leaxnng  the  truck  there.  It  is  a  matter  of  evidence,  to  be 
weighed  with  all  the  other  e\^dence  in  the  case. 

"  If  the  sole  or  the  direct  cause  of  the  accident  was  the  act  of  Horace 
Lane,  the  defendants  are  not  responsible.  If  he  was  the  culpable  cause 
of  the  accident,  that  is  to  say,  if  the  accident  resulted  from  the  fault 
of  Horace  Lane,  they  are  not  responsible.  But  if  Horace  Lane  merely 
contributed  to  the  accident,  and  if  the  accident  resulted  from  the  joint 
negligence  of  Horace  Lane  in  his  conduct  in  regard  to  moving  the  truck 
and  the  negligence  of  the  defendants  in  leavang  it  there,  where  it  was 
thus  exposed,  or  lea\'ing  it  so  insecurely  fastened  that  this  particular 
danger  might  be  reasonably  apprehended  therefrom,  then  the  interme- 
diate act  of  Horace  Lane  will  not  prevent  the  plaintiff  from  recovering, 
provided  he  himself  was  in  the  exercise  of  due  and  reasonable  care. 
If  the  plaintiff  liimself  participated  in  the  act  of  Horace  Lane  no  further 


SECT.    III.]  LANE   V.    ATLANTIC   WORKS.  185 

than  to  go  there  and  be  a  witness  to  this  transaction  which  Horace 
Lane  proposed  to  perform,  crossing  over  the  street  by  his  in\atation, 
and  witnessing  him  move  this  truck,  that  would  not  make  him  such 
a  participator  in  the  wrongful  act  of  Horace  Lane  as  to  prevent  his 
recovery,  provided  he  himself  was  in  the  exercise  of  reasonable  care. 
"  If,  however,  he  was  actually  engaged  in  the  wrongful  act  of  Horace 
Lane,  if  he  was  actually  engaged  in  disturbing  this  truck,  and  moving 
the  fastenings  which  had  been  put  upon  it  in  order  to  prevent  it  from 
being  disturbed,  and  was  actively  participating  in  the  act  of  Horace 
Lane,  then  he  cannot  recover.    But  if  the  act  of  the  plaintiff  was  lim- 
ited to  crossing  the  street  for  the  purpose  of  witnessing  the  act  done 
by  Horace  Lane,  in  answer  to  his  invitation,  and  no  active  participa- 
tion was  taken  by  the  plaintiff  other  than  that,  it  would  not  prevent 
his  recovery,  provided  he  himself  was  in  the  exercise  of  due  and  rea- 
sonable care." 

At  the  close  of  his  charge  to  the  jury  the  judge  read  the  second  rul- 
ing prayed  for  by  the  defendants,  and  said:  "If  the  plaintiff  took  an 
active  participation  in  it,  as  I  before  instructed  you,  or  went  there  as 
a  joint  actor,  for  the  purpose  of  encouraging  Horace  Lane  in  it,  he  can- 
not recover.  If  he  went  there  attracted  by  curiosity  only,  at  the  invi- 
tation of  the  party  who  was  about  to  move  the  truck,  Horace  Lane, 
then  he  may  recover;  provided,  you  are  further  satisfied  that,  in  what 
he  did,  he  was  in  the  exercise  of  the  due  and  reasonable  care  that  should 
be  expected  of  a  person  of  his  age." 

The  jury  returned  a  verdict  for  the  plaintiff  for  $6,000,  and  the  de- 
fendants alleged  exceptions. 

Colt,  J.  In  actions  of  this  description,  the  defendant  is  liable  for 
the  natural  and  probable  consequences  of  his  negligent  act  or  omission. 
The  injury  must  be  the  direct  result  of  the  misconduct  charged;  but 
it  will  not  be  considered  too  remote  if,  according  to  the  usual  experience 
of  mankind,  the  result  ought  to  have  been  apprehended. 

The  act  of  a  third  person,  intervening  and  contributing  a  condition 
necessary  to  the  injurious  effect  of  the  original  negligence,  will  not 
excuse  the  first  wrongdoer,  if  such  act  ought  to  have  been  foreseen. 
The  original  neghgence  still  remains  a  culpable  and  direct  cause  of  the 
injury.  The  test  is  to  be  found  in  the  probable  injurious  consequences 
which  were  to  be  anticipated,  not  in  the  number  of  subsequent  events 
and  agencies  which  might  arise. 

Whether  in  any  given  case  the  act  charged  was  negligent,  and  whether 
the  injury  suffered  was,  within  the  relation  of  cause  and  effect,  legally 
attributable  to  it,  were  questions  for  the  jury.  They  present  oftentimes 
difficult  questions  of  fact,  requiring  practical  knowledge  and  experience 
for  their  settlement,  and  where  there  is  e\'idence  to  justify  the  verdict, 
it  cannot  be  set  aside  as  matter  of  law.  The  only  question  for  the 
court  is,  whether  the  instructions  given  upon  these  points  stated  the 
true  tests  of  liability. 


186  LAXE    V.   ATLANTIC   WORKS.  [cHAP.    III. 

Most  of  the  instructions  which  were  requested  by  the  defendants 
as  to  their  fault,  the  plaintiff's  exercise  of  due  care,  and  the  burden  of 
proof,  were  given  in  substance.  The  defendants  now  make  only  three 
objections : 

1.  The  court  was  asked  to  rule  that  a  ^^olation  of  a  city  ordinance 
would  not  of  itself  alone  render  the  defendants  liable  in  this  suit; 
but  that  negligence  must  be  shown,  and  such  negligence  as  is  averred 
in  the  declaration.  The  jury  were  plainly  told  on  this  point,  that  the 
negligence  charged  must  be  proved,  and  that  a  violation  of  the  city 
ordinance  was  not  conclusive  proof  of  it;  that  it  was  a  matter  of  evi- 
dence to  be  considered  with  all  the  other  evidence  in  the  case.  This  was 
sufficiently  favorable  to  the  defendants.  The  city  ordinance  was  en- 
acted for  the  purpose  of  rendering  the  streets  more  safe  and  convenient 
for  travelers.  In  determining  whether  a  particular  use  of  a  street  was 
negligent,  the  jury  might  properly  consider  the  legitimate  uses  to 
which  the  streets  are  devoted.  Wright  v.  Maiden  &  Melrose  Rail- 
road Co.,  4  Allen,  283. 

2.  The  rule  of  law  stated  to  the  jury,  as  to  what  was  necessary 
to  make  the  pkiintiff  a  participator  with  Horace  Lane  in  the  unlawful 
act  of  meddling  with  the  truck  or  its  fastenings,  is  not  materially  differ- 
ent from  the  instructions  asked.  The  jury  were  first  told,  in  substance, 
that  if  the  plaintiff  did  no  more  than  go  across  the  street  by  Horace 
Lane's  inWtation,  and  Avitness  the  transaction,  he  would  not  be  a 
participator  in  the  wrongful  act  so  as  to  prevent  a  recovery;  but  if 
he  actually  moved  the  truck  or  its  fastenings,  or  actively  participated 
in  the  act,  he  could  not  recover.  At  the  close  of  the  charge,  in  connec- 
tion with  the  defendants'  request  on  this  point,  which  was  read  to  them, 
the  jury  were  further  told  that  if  the  plaintiff  went  there  as  a  joint 
actor,  for  the  purpose  of  encouraging  Horace  Lane,  he  could  not  recover, 
but  might  recover  if  he  went  attracted  by  curiosity  only  and  by  in- 
vitation of  Horace  Lane.  The  point  now  made  is  that  these  instruc- 
tions are  limited  to  the  purpose  for  which  he  crossed  the  street,  and  do 
not  meet  a  case  where  the  plaintiff  joined  in  the  mischief  after  he  got 
there,  and  was  standing  by  for  the  purpose  of  aid  and  encouragement, 
ready  to  help  if  needed.  But  the  instructions  with  the  defendants' 
request,  taken  together,  are  not '  fairly  open  to  this  objection ;  the 
jury  could  not  have  been  misled  as  to  the  true  rule,  and  must  ha\'e  found 
that  he  was  a  mere  spectator.  Brown  v.  Perkins,  1  Allen,  89,  97.  Miller 
V.  Shaw,  4  Allen,  500. 

3.  The  last  instruction  asked  was  rightly  refused.  Under  the  law 
as  laid  down  by  the  court  the  jury  must  have  found  the  defendants 
guilty  of  negligence  in  doing  that  from  which  injury  might  reasonably 
have  been  e.vpected,  and  from  wliich  injury  resulted;  that  the  plaintiff 
was  in  the  exercise  of  due  care;  that  Horace  Lane's  act  was  not  the  sole, 
direct,  or  culpable  cause  of  the  injury ;  that  he  did  not  purposely  roll 
the  iron  upon  the  plaintiff;  and  that  the  plaintiff  was  not  a  joint  actor 


SECT.    III.]  BINFORD   l\    JOHNSTON.  187 

with  liim  in  the  transaction,  but  only  a  spectator.  This  supports  the 
verdict.  It  is  immaterial  whether  the  act  of  Horace  Lane  was  mere  neg- 
ligence or  a  voluntary  intermeddling.  It  was  an  act  which  the  jury  have 
found  the  defendants  ought  to  have  apprehended  and  pro\dded  against. 
McDonald  v.  Snelling,  14  Allen,  290,  295.  Powell  v.  Deveney,  3  Cush. 
300.  Barnes  v.  Chapin,  4  Allen,  444.  Tutein  v.  Hurley,  98  Mass.  211. 
Dixon  x.  Bell,  5  M.  &  S.  198.  Mangan  r.  Atherton,  L.  R.  1  Ex.  239. 
Illidge  V.  Goodwin,  5  €.  &  P.  190.  Burrows  «.  March  Gas  Co.,  L.  R. 
5  Ex.  67,  71.    Hughes  t.  Macfie,  2  H.  &  C.  744. 

Exceptions  overruled. 


BINFORD   V.  JOHNSTON. 
Supreme  Coltrt  of  Indiana,  1882. 

[Reported  82  Ind.  426.] 

Elliott,  J.  The  case  made  by  the  appellee's  complaint,  briefly 
stated,  is  this:  Two  sons  of  appellee,  Allen  and  Todd,  aged  tweh'e 
and  ten  years  respectively,  bought  of  the  appellant,  a  dealer  in  such 
articles,  pistol  cartridges  loaded  with  powder  and  ball.  The  boys 
purchased  the  cartridges  for  use  in  a  toy  pistol,  and  were  instructed 
by  appellant  how  to  make  use  of  them  in  this  pistol ;  the  appellant  knew 
the  dangerous  character  of  the  cartridges,  knew  the  hazard  of  using 
them  as  the  boys  proposed,  and  that  the  lads  were  unfit  to  be  entrusted 
with  articles  of  such  a  character;  shortly  after  the  sale,  the  toy  pistol, 
loaded  with  one  of  the  cartridges,  was  left  by  Allen  and  Todd  lying 
on  the  floor  of  their  home.  It  was  picked  up  by  their  brother  Bertie, 
who  was  six  years  of  age,  and  discharged,  the  ball  striking  Todd  and 
inflicting  a  wound  from  which  he  died. 

A  man  who  places  in  the  hands  of  a  child  an  article  of  a  dangerous 
character  and  one  likely  to  cause  injury  to  the  child  itself  or  to  others, 
is  guilty  of  an  actionable  wrong.  If  a  dealer  should  sell  to  a  child 
dynamite,  or  other  explosives  of  a  similar  character,  nobody  would 
doubt  that  he  had  committed  a  wrong  for  which  he  should  answer,  in 
case  injury  resulted.  So,  if  a  druggist  should  sell  to  a  child  a  deadly 
drug,  likely  to  cause  harm  to  the  child  or  injury  to  others,  he  would 
certainly  be  liable  to  an  action. 

The  more  difficult  question  is  whether  the  result  is  so  remote  from 
the  original  wrong  as  to  bring  the  case  within  the  operation  of  the 
maxim  causa  proxima,  et  non  remota,  spectatur.  It  is  not  easy  to  assign 
limits  to  this  rule,  nor  to  lay  down  any  general  test  which  will  enable 
courts  to  determine  when  a  case  is  within  or  without  the  rule.     It  is 


188 


BINFORD    V.    JOHNSTON. 


[CIL^P.    III. 


true  that  general  formulas  have  been  frequently  stated,  but  these  have 
carried  us  but  little,  if  any,  beyond  the  meaning  conveyed  by  the  words 
of  the  maxim  itself. 

The  fact  that  some  agency  intervenes  between  the  original  wrong 
and  the  injury  does  not  necessarily  bring  the  case  within  the  rule;  on 
the  contrary,  it  is  firmly  settled  that  the  intervention  of  a  third  per- 
son or  of  other  and  new  direct  causes  does  not  preclude  a  recovery  if  the 
injury  was  the  natural  or  probable  result  of  the  original  wTong.  Bill- 
man  V.  Indianapolis,  etc.,  R.  R.  Co.,  76  Ind.  166  (40  Am.  R.  230). 
This  doctrine  remounts  to  the  famous  case  of  Scott  v.  Shepherd,  2 
W.  Black.  892,  commonly  known  as  the  "  Squib  case."  The  rule  goes 
so  far  as  to  hold  that  the  original  wrongdoer  is  responsiVjle,  even  though 
the  agency  of  a  second  wrongdoer  intervened.  This  doctrine  is  en- 
forced with  great  power  by  Cockburn,  C.  J.,  in  Clark  v.  Chambers, 
7  Cent.  L.  J.  11 ;  and  is  approved  by  the  text-WTiters.  Cooley  Torts,  70; 
Addison  Torts,  section  12. 

Although  the  act  of  the  lad  Bertie  intervened  between  the  original 
wrong  and  the  injury,  we  cannot  deny  a  recovery  if  we  find  that  the 
injury  was  the  natural  or  probable  result  of  appellant's  original  wrong. 
In  Henry  v.  Southern  Pacific  R.  R.  Co.,  50  Cal.  176,  it  was  said:  "A 
long  series  of  judicial  decisions  has  defined  proximate,  or  immediate  and 
direct  damages  to  be  the  ordinary  and  natural  results  of  the  negligence ; 
such  as  are  usual  and  as,  therefore,  might  have  been  expected."  Lord 
Ellenborough  said  in  Townsend  v.  Wathen,  9  East,  277,  that  "Every 
man  must  be  taken  to  contemplate  the  probable  consequences  of  the 
Nact  he  does."  In  Billman  v.  Indianapolis,  etc.,  R.  R.  Co.,  supra,  very 
many  cases  are  cited  declaring  and  enforcing  this  doctrine,  and  we 
deem  it  unnecessary  to  here  repeat  the  citations.  Under  the  rule  de- 
clared in  the  cases  referred  to,  it  is  clear  that  one  who  sells  dangerous 
explosives  to  a  child,  knowing  that  they  are  to  be  used  in  such  a  manner 
as  to  put  in  jeopardy  the  Hves  of  others,  must  be  taken  to  contemplate 
the  probable  consequences  of  his  WTongful  act.  It  is  a  probable  con- 
sequence of  such  a  sale  as  that  charged  against  appellant,  that  the 
explosives  may  be  so  used  by  children,  among  whom  it  is  natural  to 
expect  that  they  will  be  taken,  as  to  injure  the  buyers  or  their  associates. 
A  strong  illustration  of  the  principle  here  affirmed  is  afforded  by  the 
case  of  Dixon  v.  Bell,  5  M.  &  S.  198.  In  that  case  the  defendant  sent  a 
child  for  a  loaded  gun,  desiring  that  the  person  who  was  to  deliver  it 
should  take  out  the  priming.  This  was  done;  but  the  gun  was  dis- 
charged by  the  imprudent  act  of  the  child,  the  plaintiff  injured,  and  it 
was  held  that  the  defendant  was  liable.  In  Lynch  v.  Nurdin,  1  Q.  B. 
29,  the  doctrine  of  the  case  cited  was  approved,  and  the  same  judgment 
has  been  pronounced  upon  it  by  other  courts  as  well  as  by  the  text- 
writers.  Carter  v.  Towne,  98  Mass.  567;  ^Yharton  Neg.  851;  Shearman 
&  Redf.  Neg.,  3d  ed.,  596.' 

^  The  remainder  of  the  opinion  is  omitted.  —  Ed. 


SECT.    III.]  CHADDOCK   V.    PLUMMER.  189 


CHADDOCK   V.   PLUMMER. 
Supreme  Court  of  Michigan,  1891. 

[Reported  88  Mich.  225.] 

Morse,  J.  Plaintiff  brought  this  siiit  in  the  Berrien  Circuit  Court 
to  recover  damages  for  the  loss  of  liis  right  eye,  which  was  destroyed 
by  a  shot  from  an  air-gun  in  the  hands  of  a  boy  named  Roscoe  Tabor. 
The  Circuit  Judge  directed  a  verdict  for  the  defendant. 

The  facts  proven  are  substantially  as  follows:  During  the  last  of 
July  or  first  of  August,  1890,  the  defendant  bought  an  air-gun,  and  gave 
it  to  his  son,  Harry  Plummer,  a  lad  aged  about  nine  years.  Defendant 
also  bought  at  the  same  time  some  shot,  such  as  are  used  in  air-guns. 
Defendant  cautioned  his  son  to  be  careful  in  using  the  gun.  The  shot 
were  all  used  in  about  two  days,  and  some  time  later  defendant  bought 
his  son  more  shot,  which  were  used  in  half  a  day.  No  other  shot  were 
bought  or  furnished  by  the  defendant,  or  by  his  order,  or  wath  his 
knowledge.  Mrs.  Plummer,  the  wife  of  the  defendant,  bought  her  son 
Harry  some  shot,  which  he  also  fired,  except  four  shot,  by  one  of  which 
plaintiff  was  injured.  On  the  morning  of  the  accident,  September  3, 
1890,  Harry  fired  the  shot  bought  by  his  mother,  except  the  four  shot, 
and  put  the  gun  in  the  storm  house,  which  was  a  part  of  the  dwelling, 
and  then  put  the  four  shot  on  a  tablecloth,  and  went  to  school.  Mr. 
Plummer  was  not  at  home.  The  Tabor  boy  came  there  with  some 
rutabagas,  and  began  looking  and  traveling  about  the  premises,  and 
found  the  gun  in  the  storm  house,  and  then  asked  Mrs.  Plummer  for 
some  shot,  and  she  handed  him  the  four  shot  which  Harry  had  left  on 
the  table.  She  directed  him  to  shoot  at  the  hen-coop  in  the  rear  of 
the  house.  The  boy  fired  one  shot  at  the  hen-coop,  one  at  an  apple 
tree,  and  then  he  went  around  to  the  north  side  of  a  new  house,  which 
Mr.  Plummer  was  building,  to  a  point  about  a  rod  east  of  the  front  of 
the  new  house,  and  eight  or  ten  feet  north  of  it.  The  boy  was  facing  the 
west,  and  the  street  was  to  the  west  of  him,  and  the  street  runs  north- 
west and  southeast.  He  put  a  grape  on  a  plank,  and  looked  to  see  if 
anyone  was  in  the  street,  and,  seeing  no  one,  he  held  the  muzzle  of  the 
gun  about  two  and  one  half  feet  from  the  grape,  and  the  gim  was  pointed 
down,  and  fired.  The  distance  west  to  the  street  from  where  the  boy 
was  when  he  shot  is  from  seventy  to  one  hundred  feet.  ]\Ir.  Chaddock 
at  the  time  the  shot  was  fired  was  standing  in  the  street,  looking  at  this 
new  house  of  the  defendant.  The  shot  glanced  from  the  board,  and 
struck  him  in  the  eye,  destro\,ang  it.  The  street  was  a  frequently 
traveled  highway  in  the  village  of  Benton  Harbor,  then  containing 
about  3700  inhabitants,  and  at  a  point  where  defendant  had  long  re- 


190  CHADDOCK   v.    PLL'iLMEK.  [CIL\.P.    III. 

sided.  Defendant's  boy  Harry  was  nine  years  of  age  when  the  gun  was 
purchased,  and  the  Tabor  boy  was  ten  years  old  when  the  shot  was  fired. 
The  gun  was  the  common  make  of  toy  air-gun  for  children,  breaking 
in  the  middle  for  the  insertion  of  the  shot,  and,  when  closed  again,  oper- 
ating with  a  spring,  compressing  the  air  and  expelling  the  shot.  The 
shot  used  were  "BB,"  or  "double  B."  Harry  was  told  by  his  father 
not  to  lend  the  gun  to  other  boys,  as  they  might  break  it.  The  Tabor 
boy  lived  out  in  the  country,  and  occasionally  visited  at  defendant's. 
It  does  not  appear  that  the  defendant  knew  of  the  purchase  of  shot  by 
his  wife,  or  that  his  boy  had  used  all  the  shot  purchased  for  him  by 
defendant. 

The  contention  of  the  plaintiff  is  that  the  air-gun  in  question  is  a 
dangerous  weapon,  and  that  the  defendant  did  not  use  sufficient 
care  in  the  keeping  of  it  upon  his  premises;  that,  at  any  rate,  the  ques- 
tion whether  he  did  use  such  care  or  not  should  have  been  submitted 
to  the  jury.  But,  as  the  facts  are,  the  defendant  cannot  be  held  respon- 
sible for  the  injury  to  plaintiff,  unless  it  was  negligence,  sufficient 
to  support  this  action,  in  buying  the  gun  and  allowing  his  son  to  use 
it.  He  cannot  be  considered  negligent  in  any  other  respect.  He  cau- 
tioned his  boy  to  be  careful  in  its  use,  and  no  carelessness  of  his  own 
son  was  shown  at  any  time  in  his  use  of  it.  The  defendant  and  his 
son  were  neither  of  them  responsible  in  any  way,  except  owning  the 
gun,  for  the  use  of  it  by  the  Tabor  boy.  It  was  kept  inside  the  house, 
for  the  storm  door  was  an  inclosure.  If  it  came  into  the  hands  of  Tabor 
through  the  negligence  of  anyone,  it  was  the  negligence  of  the  wife,  for 
which  the  defendant  is  not  liable. 

Tliis  air-gun  may  be  a  dangerous  weapon  in  a  certain  sense.  The  shot 
fired  from  it  will  not  penetrate  clothing,  but  it  will  put  out  the  eye  of  a 
person,  and  will  kill  small  birds  and  some  small  animals.  These  guns 
are  in  common  and  everyday  use  by  children;  over  four  hundred  of 
them  were  sold  in  one  season  by  a  dealer  at  Benton  Harbor.  But  it  is 
not  more  dangerous  in  the  hands  of  children  than  a  bow  and  arrow  and 
many  other  toys.  It  would  hardly  be  good  sense  to  hold  that  this  air- 
gijn  is  so  ob\aously  and  intrinsically  dangerous  that  it  is  negligence  to 
put  it  in  the  hands  of  a  child  nine  years  of  age,  and  that  such  negligence 
would  make  the  person  so  putting  it  in  the  hands  of  the  child  respon- 
sible for  the  act  of  another  child,  getting  possession  of  it  without  de- 
fendant's consent  or  knowledge.  Even  if  the  gun  had  been  left  lying 
on  the  ground  in  the  yard  of  the  defendant,  and  the  Tabor  boy  had 
picked  it  up  outside  the  house,  and  used  it,  the  defendant  would  not 
have  been  responsible  for  the  damage  done  by  the  boy.  An  axe  is 
considered  a  dangerous  weapon,  but  if  one  leaves  an  axe  by  his  wood- 
pile, and  a  child  comes  into  the  yard,  picks  it  up,  and  injures  another 
Avith  it,  is  the  owner  of  the  axe  lial)le  for  damage  because  he  has  not 
put  this  deadly  weapon  under  lock  and  key? 

And  if  it  be  granted  that  this  air-gun  loaded  is  a  dangerous  weapon, 


SECT.    III.]  PITTSBURG    REDUCTION   CO.    l\    IIORTOX.  191 

as  is  a  gun  loaded  with  powder  and  ball,  would  this  fact  make  the  de- 
fendant liable?  I  think  not.  Suppose  a  person,  owning  a  shotgun, 
should  put  the  same  unloaded  within  the  storm  house  of  his  door,  and 
a  neighbor's  boy,  10  years  of  age,  without  the  knowledge  or  consent  of 
the  owner,  should  pick  up  the  gun,  and  oljtain  from  the  wife  or  some 
other  member  of  the  household  a  loaded  cartridge,  and  take  the  gun 
out  and  discharge  it,  accidentally  wounding  someone,  would  the 
owner  of  the  gun  be  responsible  for  the  damage  resulting  to  the  injured 
person?  To  so  hold  him  responsible  would  necessitate  the  keeping  of 
unloaded  firearms  under  lock  and  key,  with  the  key  in  the  possession 
at  all  times  of  the  owner.  This  is  not  a  case  of  lea\ing  a  torpedo  or 
dynamite  where  it  may  be  expected  that  children  will  find  and  play  with 
it.  An  unloaded  gun  is  harmless;  a  torpedo  or  dynamite  is  not,  but 
is  dangerous  anywhere,  and  under  all  circumstances,  to  those  not  ac- 
quainted with  the  proper  method  of  handling  it,  and  liable  to  explode 
even  in  the  hands  of  those  who  are  expert  in  using  it. 

In  my  opinion,  it  was  not  negligence  per  se  for  the  defendant  to  buy 
this  toy  gun,  and  place  it  in  the  hands  of  his  boy  nine  years  of  age; 
and  there  were  too  many  intervening  causes  without  the  act  or  knowl- 
ledge  of  the  defendant,  between  the  buying  of  the  gun  and  the  injury, 
to  hold  the  defendant  liable  for  its  use  in  this  case.  If  his  own  son  had, 
in  any  manner,  contril)uted  to  the  accident,  a  different  question  would 
arise,  upon  which  I  express  no  opinion. 

The  judgment  must  be  affirmed,  with  costs. 

The  other  justices  concurred.^ 


PITTSBURG  REDUCTION  CO.   v.   HORTON. 
Supreme  Court  of  Arkansas,  1908. 

[Reported  87  Ark.  .576.] 

This  was  an  action  brought  by  John  A.  Horton,  by  his  next  friend 
S.  A.  Horton,  against  the  Pittsburg  Reduction  Company  and  C.  (\ 
Brazil,  to  recover  damages  for  an  injury  sustained  by  him  caused  by 
the  explosion  of  a  dynamite  cap  in  his  left  hand. 

The  cap  which  did  the  damage  was  picked  up  by  Charlie  Copple, 
a  boy  about  10  years  of  age,  at  the  edge  of  the  spur  track  near  the  end 
of  the  toolhouse  of  appellant  company.  The  caps  were  in  a  tin  snuff 
box  and  were  made  of  brass  or  copper.  They  were  very  much  like 
small  metal  cartridges  and  appeared  to  be  empty  except  of  dirt.  The 
Copple  boy  picked  them  up  on  his  way  home  from  school  and  carried 
them  home.     He  lived  with  his  parents  al)out  one-fourth  of  a  mile 

^  See  also  Harris  v.  Cameron,  81  Wis.  239.  —  Ed. 


192  PITTSBURG    REDUCTION    CO.    V.    IIORTON.         [cHAP.    III. 

distant.  His  father  was  an  employee  of  another  company,  which  had 
a  plant  for  mining  bauxite  near  that  of  appellant  company.  Charlie 
Copple  kept  the  caps  at  home  for  about  one  week,  playing  on  the  floor 
with  them  in  the  presence  of  his  parents.  When  he  would  leave  them 
on  the  floor,  his  mother  said  she  would  pick  them  up.  She  said  she 
did  not  know  what  they  were.  She  said  that  Charlie  Copple  had 
them  there  in  the  house,  and  that  she  supposed  her  husband  noticed 
him  with  them.  The  father  denied  knowing  that  his  boy  had  the  caps 
until  he  heard  of  it  after  the  accident  happened.  Charlie  Copple 
said  that,  when  not  pla;^ang  with  them,  they  were  left  on  the  clock 
shelf.  About  one  week  after  he  had  found  them,  Charlie  carried  them 
to  school  and  traded  them  to  Jack  Horton  for  some  writing  paper. 
Jack  Horton  was  a  boy  13  years  old.  He  was  in  the  schoolhouse  at  the 
time  he  was  hurt.  He  said  he  thought  it  was  a  shell  of  a  22  cartridge 
that  had  been  shot;  that  he  was  picking  the  dirt  out  of  it  with  a  match 
when  it  exploded  and  tore  up  his  hand.  His  hand  was  torn  so  that 
it  had  to  be  amputated. 

There  is  a  great  deal  of  testimony  relative  to  the  manner  by  which 
the  caps  came  on  the  spur  track,  where  Charlie  Copple  picked  them 
up,  but  the  \aew  we  have  taken  of  the  case  renders  it  unnecessary  to 
abstract  it,  except  to  say  that  it  may  be  assumed  that  appellant  C.  C. 
Brazil,  the  general  foreman  of  appellant  company,  threw  them  there 
from  the  toolhouse  thinking  they  were  empty. 

There  was  a  jury  trial  and  a  verdict  against  both  appellants  for 
S2,000.     They  have  appealed  to  this  court. 

Hart,  J.  (after  stating  the  facts).  It  is  a  well-settled  general  rule 
that,  when  a  defendant  has  \'iolated  a  duty  imposed  upon  him  by  the 
common  law,  he  should  be  held  to  be  liable  to  every  person  injured 
whose  injury  is  the  natural  and  probable  consequence  of  the  misconduct. 
Hence  in  our  consideration  of  this  case  we  are  first  met  with  the  prop- 
osition of  whether  or  not  the  negligence  of  appellants  in  lea"\nng  the 
dynamite  caps  near  the  spur  track,  which  was  frequented  by  children, 
was  the  proximate  cause  of  the  injury.  As  was  said  by  this  court  in 
the  case  of  Martin  r.  Railway  Co.,  55  Ark.  510,  19  S.  W.  314,  and 
later  approved  in  the  case  of  James  v.  James,  58  Ark.  157,  23  S.  W.  1099, 
there  must  be  a  direct  connection  between  the  neglect  of  the  defend- 
ant and  the  injury;  that  its  connection  must  be  something  more 
than  one  of  a  series  of  antecedent  events  without  which  the  injury 
would  not  have  happened. 

It  is  a  well-settled  general  rule  that,  if,  subsequent  to  the  original 
negligent  act,  a  new  cause  has  intervened,  of  itself  sufficient  to  stand 
as  the  cause  of  the  injury,  the  original  negligence  is  too  remote.  The 
difficulty  arises  in  each  case  in  applying  the  principle  to  a  given  state 
of   facts. 

Counsel  for  appellee  mainly  rely  upon  the  case  of  Harriman  v. 
Pittsburg,  C.  &  St.  L.  R.  Co.,  45  Ohio  St.  11,  12  N.  E.  451,  4  Am.  St. 


SECT.    III.]  PITTSBURG    REDUCTION   CO.    V.    IIORTON.  193 

Rep.  507,  to  establish  their  contention  that  the  negligence  of  the 
appellants  in  leaving  the  caps  on  the  spur  track  was  the  proximate 
cause  of  the  injury.  Other  cases  are  cited  by  them  to  sustain  their 
position,  but  they  chiefly  turn  upon  the  question  of  the  contributory 
negligence  of  the  plaintiff. 

The  facts  and  the  gist  of  the  holding  of  the  court  in  the  Harriman 
Case  are  fairly  stated  in  the  syllabus,  which  is  as  follows: 

"A  train  of  cars,  passing  over  some  signal  torpedoes,  left  one  un- 
exploded  which  was  picked  up  by  a  boy  nine  years  old,  at  a  point 
on  the  track  which  he  and  other  children,  in  common  with  the  general 
public,  had  long  been  accustomed  to  use  as  a  crossing,  with  the  knowl- 
edge and  without  the  disapproval  of  the  company.  He  carried  it 
into  a  crowd  of  boys  near  by,  and,  not  knowing  what  it  was,  attempted 
to  open  it.  It  exploded  and  injured  the  plaintiff,  a  boy  10  years  of 
age.  Held,  that  the  act  of  the  boy  who  picked  up  the  torpedo  was  only 
a  contributory  condition,  which  the  company's  servants  should  have 
anticipated  as  a  probable  consequence  of  their  negligence  in  leaving 
the  torpedo  where  they  did,  and  that  that  negligence  was  the  direct 
cause  of  the  injury  suffered  by  the  plaintiff." 

There  the  child  did  a  perfectly  natural  thing  for  a  boy  to  do.  He 
found  what  appeared  to  be  an  attractive  plaything.  He  at  once  car- 
ried it  over  to  his  playmates  and  exhibited  it  to  them.  He  then  began 
to  try  to  open  it  so  that  they  might  learn  what  it  contained.  In  doing 
this  the  explosion  occurred  which  caused  the  injury.  The  result  was 
the  natural  sequence  of  antecedent  events,  and  ought  to  have  been  an- 
ticipated by  any  person  of  ordinary  care  and  prudence.  In  the  present 
case,  the  facts  are  practically  undisputed.  Charlie  Copple's  father  was 
an  employee  of  a  company  engaged  in  a  similar  business  to  that  of  ap- 
pellant company.  Naturally,  his  avocation  and  the  proximity  of  his 
residence  to  the  mines  made  both  himself  and  his  wife  familiar  with  the 
nature  of  explosives.  True,  Mrs.  Copple  says  that  she  did  not 
know  what  the  shells  contained,  but  she  did  know  that  they  were 
shells  for  some  kind  of  explosives,  that  her  son  brought  them  home, 
and  that  he  played  with  them.  She  admits  that,  when  he  would 
leave  them  on  the  floor,  she  would  pick  them  up  and  lay  them 
away  for  him.  This  continued  for  a  week,  and  then,  with  her  knowl- 
edge, he  carried  them  to  school.  Her  course  of  conduct  broke  the 
causal  connection  between  the  original  negligent  act  of  appellant  and  the 
subsequent  injury  of  the  plaintiff'.  It  established  a  new  agency,  and 
the  possession  by  Charlie  Copple  of  the  caps  or  shells  was  thereafter 
referable  to  the  permission  of  his  parents,  and  not  to  the  original  tak- 
ing. Charlie  Copple's  parents  having  permitted  him  to  retain  posses- 
sion of  the  caps,  his  further  acts  in  regard  to  them  must  be  attributable 
to  their  permission  and  were  wholly  independent  of  the  original  negli- 
gence of  appellants.  This  is  but  an  application  of  the  well-established 
general  rule  that,  to  charge  a  person  w^th  liability  for  damages,  the 


194  OLSON    r.    GILL   HOME    IN\'ESTMEXT   CO.  [CHAP.    III. 

negligence  alleged  must  be  found  to  have  been  the  proximate  cause  of 
the  injury  to  the  plaintiff. 

This  case  has  given  us  much  concern,  and  we  have  reviewed  many 
cases  illustrating  the  application  of  the  general  rule.  It  is  useless  to 
^e^^ew  them,  for  most  of  them  recognize  and  approve  the  general  rule, 
and,  as  the  facts  in  each  case  are  different,  a  re\'iew  of  them  would 
add  nothing  to  the  opinion.  The  leading  cases  on  the  subject  are  cited 
in  the  respective  briefs  of  the  attorneys  in  this  case. 

As  above  stated,  the  evidence  speaking  on  the  question  is  undisputed, 
and,  having  determined  that  the  intervening  act  of  Charlie  Copple's 
parents  in  permitting  him  to  retain  in  his  possession  the  caps  broke 
the  causal  connection  between  the  original  wrongful  act  of  appellants 
and  the  subsequent  injury  of  the  plaintiff,  there  is  nothing  to  submit 
to  the  jury. 

The  judgment  is  therefore  reversed,  and  the  cause  dismissed. 

Wood,   J.,   not   participating.^ 


OLSON  V.   GILL  HOME   INVESTMENT  CO. 

Supreme  Court  of  Washington,  1910. 

[Reported  58  Wash.  L51.] 

Crow,  J.  This  action  was  commenced  by  Ernest  Olson,  a  minor, 
by  M.  E.  Olson,  his  guardian  ad  litem,  against  Gill  Home  Investment 
Company,  a  corporation,  and  Clark  N.  Gill,  its  president  and  manager, 
to  recover  damages  for  personal  injuries.  From  a  judgment  in  plain- 
tiff's favor,  the  defendants  have  appealed. 

The  appellant  Gill  Home  Investment  Company  was  engaged  in 
selling  an  addition  to  the  city  of  Tacoma,  and  was  itself  owner  of  four 
unfenced  lots  therein,  located  at  the  intersection  of  two  public  streets. 
A  small  building  constructed  for  toilet  purposes  was  located  on  these 
lots,  about  one  hundred  and  twentv-five  feet  from  one  street  and  thirt^■- 
nine  feet  from  the  other.  A  board  screen  or  wall,  about  six  feet  high, 
was  in  front  of  the  unlocked  toilet  door.  Between  the  toilet  and  the 
nearest  street  was  a  small  tool  house.  Some  weeks  prior  to  the  accident 
Avhich  caused  respondent's  injuries,  the  appellant  corporation  com- 
menced the  construction  of  a  cement  building,  and  Clark  N.  Gill,  its 
president  and  manager,  caused  a  box  and  several  loose  sticks  of  Her- 
cules stumping  powder  (hereinafter  called  dynamite,  a  term  used 
by  the  witnesses),  to  be  removed  from  the  tool  house  and  stored  on  a 
shelf  in  the  toilet,  doing  .so  to  protect  workmen  who  went  into  the 
tool  house.  The  shelf  was  located  on  plates  upon  which  the  rafters 
rested,  about  six  feet  eight  inches  above  the  floor  and  five  feet  eight 

1  See  also  Pollard  v.  Oklahoma  City  Ry.,  36  Okl.  96,  128  Pac.  300.  —Ed. 


SECT.    III.]  OLSOX    r.    (iILL   HOME    I>rV'EST:VIEXT   CO.  195 

inches  above  the  seat  of  the  toilet.  The  toilet  door  was  left  unlocked. 
A  pile  of  sand,  attractive  to  children  but  designed  for  use  in  mixing 
concrete,  was  kept  on  appellants'  lots  near  the  toilet.  A  public  school 
was  about  three  blocks  distant.  Several  residences,  the  homes  of 
children,  were  located  in  the  Aicinity.  A  number  of  young  school  boys, 
including  the  respondent,  were  in  the  habit  of  plavnng  upon  appellants' 
lots.  They  occasionally  ^asited  and  used  the  toilet,  as  did  other  per- 
sons, most  of  whom  were  appellants'  employees.  One  of  the  boys, 
Wesley  Depew,  nearly  fourteen  years  of  age,  discovered  the  box 
and  loose  sticks  of  dynamite  and  told  his  twin  brother  Leslie  Depew 
of  such  discovery.  On  a  Sunday  prior  to  the  accident,  Leslie  Depew, 
with  two  younger  boys,  went  to  the  toilet  and  took  a  loose  stick  of 
dynamite  which  they  hid  under  a  stump.  Wesley  Depew  had  pre\d- 
ously  taken  some  dynamite  caps  and  fuses  which  he  says  he  found  in 
the  toilet.  He  exploded  one  of  these  caps  and  gave  some  of  them 
to  the  respondent,  who  was  then  about  thirteen  years  of  age.  On 
the  day  of  the  accident,  Leslie  Depew  and  two  other  boys,  accompan- 
ied by  respondent,  took  the  dynamite,  caps  and  fuse,  to  some  vacant 
ground  one-fourth  of  a  mile  distant,  where  respondent  attached  a  cap 
and  fuse  to  the  stick  of  dynamite,  and  igniting  it,  unsuccessfully  tried 
to  explode  it  under  a  large  stump.  He  then  attempted  to  explode  it 
with  a  lighted  paper,  but  again  failing,  undertook  to  remove  the  cap 
by  prying  it  from  the  dynamite  with  a  stick.  This  produced  an  un- 
expected explosion  which  caused  respondent  to  lose  both  of  his  hands. ^ 

Appellants,  citing  many  authorities,  further  contend  that  their  neg- 
ligence, if  conceded,  was  not  the  proximate  cause  of  the  accident,  but 
that  the  intervening  criminal  act  of  the  boys  in  stealing  the  dynamite, 
caps  and  fuse,  and  their  subsequent  acts  in  attempting  to  explode 
the  same,  were  the  proximate  cause.  In  an  action  for  damages  result- 
ing from  negligence,  the  defendant  will  be  held  liable  for  the  natural  and 
probable  consequences  of  his  negligent  acts.  To  create  such  a  liability 
the  injury  complained  of  must  result  from  the  negligence  charged,  which 
will  not  be  considered  as  too  remote  if  the  resulting  accident  might 
have  been  reasonably  anticipated.  The  act  of  an  intervening  third 
party,  contributing  to  the  injurious  result  of  the  original  negligence, 
does  not,  in  all  cases,  excuse  the  original  wrongdoer.  If  such  inter- 
vening act  could,  or  in  the  exercise  of  ordinary  prudence  should,  have 
been  foreseen,  the  original  act  still  remains  the  proximate  cause  of 
the  injury.  In  this  case  it  was  for  the  jury  to  determine  whether 
the  appellants  who  carelessly  and  illegally  stored,  and  it  might  be  said 
abandoned,  a  dangerous  explosive,  should  have  anticipated  that  it 
might  come  into  the  possession  of  young  boys  who  frequented  the 
place,  even  though  they  were  trespassers. 

"  In  addition  to  the  requirement  that  the  result  should  be  the  natural 

*  Part  of  the  opinion  is  omitted.  In  it  the  Court  decided  that  the  jury  were  justi- 
fied in  finding  the  defendant  negligent. —  Ed. 


196  OLSON   V.    GILL   HOME    IN\'ESTMENT   CO.  [CHAP.    III. 

and  probable  consequence  of  the  negligence  it  is  commonly  stated 
that  the  consequence  should  be  one  which  in  the  light  of  attending 
circumstances  an  ordinarily  prudent  man  ought  reasonably  to  have  fore- 
seen might  probably  occur  as  the  result  of  his  negligence."  29  Cyc. 
493.  See,  also,  Nelson  v.  McLellan,  31  Wash.  208,  71  Pac.  747,  96  Am. 
St.  902,  60  L.  R.  A.  793;  Akin  v.  Bradley  Engineering  &  Mach.  Co., 
48  Wash.  97,  92  Pac.  903,  14  L.  R.  A.  (N.  S.)  586;  Wellington  v.  Pelle- 
tier,  173  Fed.  908;  Mattson  v.  Minnesota  etc.  R.  Co.,  supra;  Powell  v. 
Deveney,  3  Cush.  300,  50  Am.  Dec.  738;  Scott  v.  Shepherd,  2  W.  Bl. 
892;  Englehart  v.  Farrant  &  Co.,  1  Q.  B.  (1897)  240;  Myers  v.  Sault  St. 
Marie  Pulp  &  Paper  Co.,  3  Ont.  L.  R.  600;  Labombarde  r.  Chatham 
Gas  Co.,  10  Ont.  L.  R.  446;  Clark  v.  Chambers,  3  Q.  B.  (1878)  327, 
7  Cent.  Law  Journal  11 ;  Lynch  v.  Nurden,  1  Q.  B.  29;  Illidge  v.  Goodwin, 
5  C.  &  P.  190;  Lake  v.  Milliken,  62  Me.  240,  16  Am.  Rep.  456;  Harri- 
man  v.  Pittsburgh  etc.  R.  Co.,  45  Ohio  St.  11,  12  N.  E.  451,  4  Am.  St. 
507;  Lane  v.  Atlantic  Works,  111  Mass.  136;  Powers  v.  Harlow,  53 
Mich.  .507,  19  N.  W.  257,  51  Am.  Rep.  154;  Mize  v.  Rocky  Mountain 
Bell  Tel.  Co.,  38  Mont.  521,  100  Pac.  971,  129  Am.  St.  659;  Fishburn  v. 
Burlington  &  N.  W.  R.  Co.,  127  Iowa  483,  103  N.  W.  481. 

No  two  cases  can  be  found  which  are  identical,  and  there  is  an 
irreconcilable  conflict  of  authority  on  this  question,  but  we  think  the 
above  mentioned  cases,  and  many  others  that  might  be  cited,  announce 
correct  principles  of  law  applicable  to  the  facts  now  before  us.  In 
Myers  v.  Sault  St.  Marie  Pulp  &  Paper  Co.,  supra,  a  workman  em- 
ployed by  the  defendants  ascended  a  movable  stepladder  to  work 
near  the  unguarded  rim  of  a  cogwheel.  When  he  was  about  to  descend, 
a  truckman  moved  the  ladder,  causing  him  to  fall  on  the  unguarded 
wheel.  The  contention  was  made  that  the  defendants'  negligence 
in  failing  to  guard  the  cogwheel  as  required  by  statute,  and  in  failing  to 
pro\dde  an  immovable  ladder,  was  not  the  proximate  cause  of  the 
accident,  but  that  the  wrongful  act  of  the  truckman  in  moving  the 
ladder  was  such  proximate  cause.  The  issue  was  submitted  to  the 
jury,  and  the  appellate  court,  speaking  through  Armour,  C.  J.  O., 
-said : 

"  The  jury  having  found  that  the  injury  to  the  workman  was  caused 
by  the  negligence  of  the  defendants  in  no  way  guarding  the  wheel, 
and  in  not  properly  fastening  the  ladder  to  the  floor,  and  this  finding 
l)eing,  as  I  think,  supported  by  the  ex-idence,  the  next  question  is,  did 
the  intervention  of  the  workman  in  wrongfully  taking  away  the  ladder 
relieve  the  defendants  from  the  consequences  of  their  negligence,  and  I 
think  not,  for  the  defendants'  negligence  still  remained  an  operating 
cause  of  the  workman's  injury.  According  to  what  is  said  by  Lord 
Esher  and  Rigby,  L.  J.,  in  Engelhart  p.  Farrant  &  Co.,  [1897]  1  Q.  B. 
240,  the  question  whether  the  negligence  of  the  defendants  was  an 
effective  cause  of  the  workman's  injury  was  a  question  for  the  jury,  and 
if  so,  they  have  in  effect  determined  it,  by  finding  as  they  did  in  their 


SECT.   III.]  OLSON  V.   GILL  HOME   INVESTMENT  CO.  197 

answers  to  the  third  and  seventh  questions  submitted  to  them.  And 
I  think  that  the  authorities  show  that  the  intervention  of  the  work- 
man in  wrongfully  taking  away  the  ladder  did  not  relieve  the  de- 
fendants from  the  consequences  of  their  negligence." 

In  Labombarde  v.  Chatham  Gas  Co.,  supra,  where  plaintiff  received 
an  electric  shock,  the  court  said: 

"But  if  the  actual  throwing  of  the  loose  guy  wire  over  the  other 
wires  were  the  act  of  some  passer-by,  who  thought  to  put  it  out  of  the 
way,  or  even  of  some  mischievous  urcliin,  it  seems  to  me  such  a  likely 
and  probable  thing  to  happen  that  it  is  not  too  remotely  connected 
with  the  act  of  cutting  the  guy  wire  from  its  fastenings  and  lea^-ing 
it  loose  on  the  ground  to  render  those  guilty  of  the  latter  negligence 
liable  for  the  consequences  which  ensued  though  an  independent  agency 
had  intervened  as  their  immediate  cause.  The  original  negligence  of  the 
workmen  of  the  defendant  company  was  an  effective  cause  of  the  in- 
jury to  the  plaintiffs.    McDowall  v.  Great  Western  R.  W.  Co.,  [1902] 

1  K.  B.  618,  [1903]  2  K.  B.  331,  337-8." 

The  recent  case  of  Wellington  v.  Pelletier,  supra,  is  especially  per- 
tinent. There  the  defendant's  employees  had  negligently  left  a  num- 
ber of  cars  standing  on  a  spur  track  at  the  head  of  a  grade,  secured  only 
by  setting  the  brakes.  They  should  have  been  further  secured  by  fas- 
tening or  blocking  the  wheels.  Some  children  playing  about  the  cars 
released  the  brakes,  causing  them  to  run  down  and  kill  defendant's 
employee,  who  was  working  in  a  trench  between  the  rails  of  the  spur. 
It  was  held  that  the  intervening  act  of  the  children  did  not  pi-event 
the  defendant's  negligence  from  being  the  proximate  cause  of  the 
accident.    The  court  said : 

■"It  is  claimed  that  the  interposition  of  the  boys  in  this  case  was  the 
interposition  of  a  new  efficient  cause,  which,  if  interposed,  the  law 
says  eliminates  the  original  cause.  On  the  other  hand,  it  has  been 
thoroughly  understood,  since  the  leading  case  of  Scott  v.  Shepherd, 

2  W.  Bl.  892,  well  known  as  the  '  Squib  Case,'  that  the  interposition 
even  of  human  beings,  acting  under  circumstances  which  deprive 
them  of  periods  for  reflection,  or  known  to  be  of  classes  which  are  ordi- 
narily governed  by  unreasoning  impulses,  does  not  come  within  the 
class  of  responsible  interventions  referred  to.  This  is  illustrated  in 
one  direction  by  the  Squib  Case,  and  in  the  other  direction  by  the  well- 
known  cases  where  young  children,  either  through  carelessness  or  in- 
attention, have  been  intrusted  with  dangerous  weapons.  The  general 
principle  is  sufficiently  discussed  in  Pollock's  Law  of  Torts  (8th  Eng. 
ed.)  45  et  scq.  The  rule  on  which  the  plaintiff  relies  in  this  respect  was 
authoritatively  stated  and  applied  by  the  Court  of  Appeal  in  1896 
in  Engelhart  v.  Farrant,  [1897]  1  Q.  B.  240." 

In  this  case  it  was  for  the  jury  to  determine  whether  respondent  and 
the  other  boys,  considering  their  age,  their  experience,  and  their  knowl- 
edge of  right  and  wrong,  were  in  their  acts  governed  by  unreasoning  and 


198  OLSON   v.    GILL   HOME    INVESTMENT   CO.  [CHAP.    III. 

natural  impulses.  That  the  question  of  proximate  cause  was  properly 
submitted  to  the  jury,  see:  Milwaukee  &  St.  Paul  R.  Co.  v.  Kellogg, 
94  U.  S.  469;  Union  Pac.  R.  Co.  i\  Callaghan,  56  Fed.  988;  Denver  etc. 
R.  Co.  V.  Robbins,  2  Colo.  App.  313,  30  Pac.  261. 

Appellants  make  other  assignments  of  error  based  upon  instructions 
given  and  refused,  but  the  foregoing  discussion  disposes  of  them 
adversely  to  their  contention.  The  instructions  given  fully,  fairly,  and 
correctly  stated  the  law,  and  properly  submitted  all  issues  of  fact  to 
the  jury  for  their  consideration. 

It  is  contended  that  the  criminal  act  of  the  boys  in  stealing  the 
dynamite  was  such  an  independent,  intervening  act  as  to  insulate  the 
appellants'  negligence  and  relieve  them  from  liability.  The  question 
as  to  whether  the  boys  fully  understood  the  criminal  import  of  their 
act  was  properly  submitted  to  the  jury  and  determined  adversely  to 
the  appellants'  contention,  as  was  also  the  question  of  the  contributory 
negligence  of  the  respondent,  he  being  of  tender  age.  There  was  e\d- 
dence  tending  to  show  that  the  boys,  including  respondent,  did,  to  a 
limited  extent,  realize  that  dynamite  was  a  violent  explosive.  They 
were  trying  to  expode  it ;  but  the  e\adence  further  shows  that  they  did 
not  fully  understand  or  appreciate  all  of  its  dangerous  qualities.  They 
supposed  it  could  only  be  exploded  by  some  method  of  ignition,  and 
when  they  lit  the  fuse,  they  dodged  behind  large  stumps  for  protection. 
It  is  CAndent,  however,  that  they  did  not  anticipate  that  any  explosion 
could  be  produced  in  the  manner  in  which  it  was  produced.  In  the 
light  of  respondent's  tender  years,  his  limited  knowledge,  his  lack  of 
experience,  and  all  of  the  facts  and  circumstances  disclosed  by  the 
evidence,  we  cannot  hold  that  he  was,  as  a  matter  of  law,  guilty  of  such 
contributory  negligence  as  to  relieve  the  appellants  from  liability,  but 
must  hold  that  the  question  of  his  contributory  negligence  was  an 
issue  for  the  jury.^ 

iSee  also  Victor  v.  Smilanich,  54  t'olo.  479,  131  Pac.  392;  Vills  v.  Cloquet,  119 
Minn.  277,  138  N.  W.  33;  Harriman  v.  Pittsburgh  Ry.,  45  Oh.  St.  11,  12  N.  E.  451.— 
Ed. 


SECT.    III.]  HARRISON   V.    BERKELEY.  199 


HARRISON  V.  BERKELEY. 
Court  of  Appeals,  South  Carolina,  1847. 

[Reported  1  Strob.  Law,  525.] 

The  following  is  the  report  of  the  presiding  judge: 

This  was  an  action  of  trespass  on  the  case,  in  which  the  plaintiff  sought 
to  recover  damages,  for  that  the  defendant,  being  a  shop-keeper,  in  \io- 
lation  of  the  statute  on  the  subject,  and  to  the  WTong  of  the  plaintiff, 
sold  and  delivered  ardent  spirits  to  Bob,  a  slave  of  the  plaintiff,  by  means 
whereof  the  said  slave  became  intoxicated,  and  died. 

It  appeared  that  on  the  24th  day  of  December,  1845,  Bob,  being  pa- 
troon  of  one  of  the  plaintiff's  boats,  on  his  way  from  Charleston,  went 
into  the  shop  of  defendant  in  Camden,  and  there  received  a  gallon  jug 
and  a  quart  bottle  of  whiskey,  and  started  with  them  in  the  afternoon, 
to  convey  to  his  master  in  Fairfield,  across  the  Wateree,  intelligence  of 
the  boat's  arrival.  Bob  drank  none  at  the  shop,  but  drank  repeatedly 
from  the  bottle  before  he  reached  the  river,  at  the  ferr;^-,  and  afterwards ; 
fell  down  in  the  road  repeatedly;  fell  into  a  creek,  in  which  he  would 
have  been  drowned,  but  for  the  aid  of  some  white  men  then  in  his  company ; 
and  soon  afterwards,  at  the  fork  of  the  roads,  proceeded  alone,  staggering. 
He  was  clad  in  homespun,  and  had  a-bundle,  besides  the  jug,  on  his  back. 
The  night  was  misty  and  somewhat  cold.  He  called  at  a  house  apd  got 
fire,  returned  and  went  again.  Next  morning  he  was  found  dead  near 
the  house  where  he  had  called;  the  jug  of  whiskey  full  and  corked  near 
him,  the  bottle  not  to  be  seen;  and  upon  movement  of  his  body,  a  fluid 
smelhng  like  whiskey  flowed  from  his  mouth.  A  physician  examined  his 
body  upon  the  inquest,  but  could  discover  no  external  injury;  and  from 
the  want  of  rigidit;^-  in  the  muscles  and  other  appearances,  had  no  doubt 
that  he  died  of  drunkenness  and  exposure. 

Wardlaw,  J.  delivered  the  opinion  of  the  court. 

This  action  is  novel  in  the  instance,  but  that  is  no  objection  to  it,  if 
it  be  not  new  in  principle.  The  law  endures  no  injur\',  from  which 
damage  has  ensued,  without  some  remedy;  but  directs  the  applica- 
tion of  principles  already  established,  to  every  new  combination  of  cir- 
cumstances that  may  be  presented  for  decision. 

It  has,  however,  been  urged  here  again,  as  it  was  on  the  circuit,  that  ad- 
mitting everything  which  the  plaintiff'  has  alleged,  he  has  presented 
either  a  case  of  damage  without  legal  injury,  or  a  case  of  injury  without 
legal  damage. 

First.  Damage  mthout  injury.  It  is  said,  that  the  act  of  selling  or 
giving  whiskey  to  the  slave.  Bob,  was  not  in  itself  a  wrong  to  the  plain- 


200  HARRISON   V.    BERKELEY.  [cilAP.    III. 

tiff,  but  was  only  a  \aolation  of  a  penal  statute,  wliich  has  imposed  upon 
such  acts  penalties,  to  be  recovered  by  indictment;  and  that,  therefore, 
no  action  by  the  plaintiff  lies,  nor  any  remedy  but  the  indictment  pre- 
scribed by  the  statute. 

The  wrong,  for  which  an  action  of  trespass  on  the- case  hes,  may  be 
either  an  unlawful  act,  or  a  lawful  act  done  under  circumstances  which 
render  it  wrongful  —  any  act  done  or  omitted,  contrary  to  the  general 
obhgation  of  the  law,  or  the  particular  rights  and  duties  of  the  parties. 
It  might  not  be  difficult  to  distinguish  between  the  selling,  or  giving  of 
spirituous  liquor  to  a  slave,  and  the  fair  selling  to  a  slave  of  an  article 
which  could  not  be  expected  to  produce  harm;  and  to  show  that,  inde- 
pendent of  any  express  statutory  prohibition,  the  former  act  is  so  con- 
trary to  the  rights  of  the  master,  and  to  the  duties  imposed  upon  other 
persons  in  a  slave-holding  community,  that  the  person  who  does  it 
without  special  matter  of  excuse,  subjects  himself  to  liability  for  all  the 
legal  damage  that  may'  thence  ensue,  in  like  manner  as  if  he  had  care- 
lessly or  wantonly-  placed  noxious  food  within  the  reach  of  domestic 
animals.  But  this  case  may  be  rested  where  the  plaintiff  left  it.  Our 
statutes,  time  after  time,  have  subjected  him,  who  sells  to  a  slave  any 
article  without  license,  to  fine  and  imprisonment  upon  his  conviction 
after  indictment;  and  the  last  statute  on  the  subject  provides  especially 
for  the  punishment,  upon  conviction  after  indictment,  of  him,  who  sells 
or  gives  spirituous  liquor  to  a  slave.  No  express  prohibition  is  contained 
in  either  of  the  statutes,  but  the  penalties  necessarily  imply  a  prohibition, 
and  make  the  thing  prohibited,  unlawful;  (10  Co.  75).  For  the  injury 
to  the  public,  the  only  remedy  is  that  provided  by  the  statute  —  indict- 
ment; but  as  in  case  of  a  nuisance  to  the  whole  community,  if  any  per- 
son has  suffered  a  particular  damage  beyond  that  suffered  by  the  public, 
he  may  maintain  an  action  in  respect  thereof,  (2  Ld.  Ray.  985) ;  so  in  case 
of  a  misdemeanor  punishaljle  by  statute,  a  party  grieved  is  entitled  to 
his  action  for  the  particular  damage  done  to  liira  by  reason  of  the  un- 
lawful   act. 

Second.  We  come  then  to  the  main  ground  assumed  in  the  defence  — 
that  no  legal  damage  followed  the  injury,  but  that  which  was  shown 
was  too  remote  —  not  such  a  consequence  of  the  injury  as  the  law  will 
notice. 

It  would  be  vain  to  attempt  to  define  with  precision,  the  terms  which 
have  been  used  on  this  subject,  or  to  lay  down  any  general  rules,  by  which 
consequences  that  shall  be  answered  for,  and  those  which  are  too  remote 
for  consideration,  may  be  always  distinguished.  But  we  will  endeav^or, 
without  dwelling  on  particular  cases,  to  deduce  from  the  general  course 
of  decision  on  tliis  point,  so  much  as  may  show  that  the  instructions 
given  were  sufficiently  favorable  for  the  defendant,  and  that  verdict  is 
conformable  to  law. 

We  are  troubled  here  with  no  distinctions  between  loss  sustained  and 
gain  prevented;  nor  with  any  between  cases  wliich  have  been  aggra- 


SECT.    III.]  HARRISON   V.    BERKELEY.  201 

vated  by  e\al  motive,  and  those  which  have  not  been:  for  the  plaintiff 
here  has  claimed  only  compensation  for  his  actual  loss;  and  the  defend- 
ant may  be  regarded  as  the  jury  were  instructed  to  regard  him  —  that  is, 
*as  one  who,  with  no  particular  evil  purpose  or  ill-will  towards  master 
or  slave,  has  violated  the  law  only  for  his  own  gain. 

A  distinction,  however,  is  to  be  observed  between  cases  where  the 
damage  ensues,  whilst  the  injurious  act  is  continued  in  operation  and  force, 
and  those  where  the  damage  follows,  after  the  act  has  ceased.  In  the 
former  class,  were  the  cases  of  Wright  &  Gray,  (2  Bay,  464)  and  all  the 
cases  which  have  been  cited,  or  supposed,  of  slaves  put  without  permis- 
sion of  the  owners  on  race-horses,  in  steam-boats,  or  on  railroads  — 
those  of  property  injured  during  a  deviation  from  the  course  which  was 
prescribed  concerning  it,  (6  Bing.  716)  and  in  general  all,  where  unex- 
pected damage  was  done,  whilst  an  unauthorized  interference  with  anoth- 
er's rights  lasted.  Here  it  is  usually  of  small  moment  to  inquire,  whether 
the  damage  was  the  natural  consequence  of  the  injury,  because  the 
immediate  connexion  between  the  wrongful  act,  and  the  damage  sus- 
tained, shows  that  the  damage,  however  extraordinary,  has  actually 
resulted  directly  from  the  injury.  But  in  the  latter  class,  to  which  the 
case  before  us  must  be  assigned,  the  connexion  is  not  immediate  between 
the  injury  and  the  consequences;  and  it  becomes  indispensable  to  dis- 
criminate in  some  way  between  the  various  consequences  that  in  some 
sense  may  be  said  to  proceed  from  the  act,  for  all  of  them  cannot  con- 
stitute legal  damage. 

Every  incident  will,  when  carefully  examined,  be  found  to  be  the  result 
of  combined  causes,  and  to  be  itself  one  of  various  causes  which  pro- 
duce other  events.  Accident  or  design  may  disturb  the  ordinary  action 
of  causes,  and  produce  unlooked  for  results.  It  is  easy  to  imagine  some 
act  of  trivial  misconduct  or  slight  negligence,  which  shall  do  no  direct 
harm,  but  set  in  motion  some  second  agent  that  shall  move  a  third,  and 
so  on,  until  the  most  disastrous  consequences  shall  ensue.  The  first 
wrongdoer,  unfortunate  rather  than  seriously  blameable,  cannot  be 
made  answerable  for  all  of  these  consequences.  He  shall  not  answer 
ior  those  which  the  party  grieved  has  contributed  by  his  own  blameable 
negligence  or  wrong  to  produce,  or  for  any  which  such  party,  by  proper 
diligence,  might  have  prevented.  (Com.  Dig.  action  on  the  case,  134; 
11  East.  60;  2  Taunt.  314;  7  Pick.  284.)  But  this  is  a  very  insufficient 
restriction;  outside  of  it  would  often  be  found  a  long  chain  of  consequence 
upon  consequence.  Only  the  proximate  consequence  shall  be  answered 
for.  (2  Greenleaf  P^v.  210,  and  cases  there  cited.)  The  difficulty  is  to 
determine  what  shall  come  within  this  designation.  The  next  conse- 
quence only  is  not  meant,  whether  we  intend  thereby  the  direct  and  im- 
mediate result  of  the  injurious  act,  or  the  first  consequence  of  that  result. 
What  either  of  these  would  be  pronounced  to  be,  would  often  depend 
upon  the  power  of  the  microscope,  with  which  we  should  regard  the 
affair.    Various  cases  shew  that  in  search  of  the  proximate  consequences 


202  HARRISON   V.    BERKELEY.  [CIL\P.    III. 

the  chain  has  been  followed  for  a  considerable  distance,  but  not  without 
limit,  or  to  a  remote  point.  (8  Taunt.  535;  Peak's  cases,  205.)  Such 
nearness  in  the  order  of  events,  and  closeness  in  the  relation  of  cause  and 
effect,  must  subsist,  that  the  influence  of  the  injurious  act  may  pre- 
dominate over  that  of  other  causes,  and  shall  concur  to  produce  the 
consequence,  or  may  be  traced  in  those  causes.  To  a  sound  judgment 
must  be  left  each  particular  case.  The  connexion  is  usually  enfeebled, 
and  the  influence  of  the  injurious  act  controlled,  where  the  wTongful  act 
of  a  third  person  intervenes,  and  where  any  new  agent,  introduced  by 
accident  or  design,  becomes  more  powerful  in  producing  the  consequence 
than  the  first  injurious  act.  (8  East,  1;  1  Esp.48.)  It  is,  therefore,  re- 
quired that  the  consequences  to  be  answered  for,  should  be  natural  as 
well  as  proximate.  (7  Bing.  211;  5  B.  &  Ad.  645.)  By  this,  I  under- 
stand, not  that  they  should  be  such  as  upon  a  calculation  of  chances 
would  be  found  likely  to  occur,  nor  such  as  extreme  prudence  might 
anticipate,  but  only  that  they  should  be  such  as  have  actually  ensued 
one  from  another,  without  the  occurrence  of  anv  such  extraordinarv  con- 
junctm-e  of  circumstances,  or  the  intervention  of  any  such  extraordinary 
result,  as  that  the  usual  course  of  nature  should  seem  to  have  been  de- 
parted from.  In  requiring  concurring  consequences,  that  they  should  be 
proximate  and  natural  to  constitute  legal  damage,  it  seems  that  in  propor- 
tion as  one  quality  is  strong,  may  the  other  be  dispensed  with :  that  which 
is  immediate,  cannot  be  considered  unnatural;  that  which  is  reasonablv 
to  be  expected  will  be  regarded,  although  it  may  be  considerably  re- 
moved.   (20  \Yend.  223.) 

It  has  been  supposed,  in  argument,  that  without  any  of  these  distinc- 
tions, it  is  always  sufficient  to  inquire  only  whether  the  consequences 
have  certainly  proceeded  from  the  injurious  act:  but  it  will  be  seen,  that 
in  settling  what  have  certainly  proceeded  from  the  act,  we  will  be  obliged 
to  determine  what  are  natural  and  proximate,  unless  we  mean  to  run  to 
absurd  extremes. 

In  the  case  before  us,  the  defendant  has  insisted  that  the  damage  re- 
sulted not  so  much  from  his  act  as  from  the  acts  of  the  slave,  w  ho  was  a 
moral  being,  and  a  free  agent.  (4  M'Cord,  223.)  In  cases  where  damage 
has  been  done,  during  the  continuance  of  a  wrongful  interference  with  a 
slave,  it  was  considered  of  no  consequence  that  the  slave  was  a  free  agent: 
(2  Rich.  613;  Id.  455;  9  La.  Rep.  213)  for  there  the  consent  of  the  slave 
could  not  justify  the  interference,  and  even  the  wilful  act  of  the  sla\'e 
producing  the  damage  was  like  any  other  improbable  misfortune 
which  might  have  occurred  whilst  the  wTongful  act  was  in  operation. 
But  in  cases  like  this,  the  will  of  a  slave  may  well  interrupt  the  natural 
consequences  of  a  wrongdoer's  act,  and  produce  consequences  for  which 
he  should  not  answer.  Selling  whiskey  to  a  slave  is  no  more  unlawful 
than  seUing  to  a  sla\'e  any  other  article  without  license.  And  if  a  rope, 
sold  to  a  slave,  without  license  and  without  suspicion  of  mischief,  should 
be  employed  by  the  slave  to  hang  himself,  the  prominent  ground  of  dis- 


SECT.    III.]  HARRISON  V.    BERKELEY.  203 

tinction  between  that  case  and  the  present  one  would  depend  upon  the 
will  of  the  slave.  If  it  should  be  said  that  the  slave  would  have 
got  a  rope  elsewhere,  or  would  have  taken  some  other  means  of  self- 
destruction,  it  might  be  answered  that  if  this  defendant  had  not  sold  the 
wliiskey,  Bob  would  have  got  it,  or  some  other  means  of  intoxication, 
elsewhere.  But  where  the  mischievous  purpose  of  a  sla\e  is  manifest, 
or  should  be  foreseen  by  ordinary  prudence,  the  injurious  act  embraces 
the  will  of  the  slave  as  one  of  its  ingredients ;  —  the  wrong  consists,  in 
part,  in  ministering  to  the  purpose,  and  natural  consequences  of  that 
purpose,  (although  the  purpose  may  have  been  carried  to  an  extent  not 
anticipated,  or  the  consequences  may  have  been  altogether  undesigned 
and  unusual,)  are  the  legal  consequences  of  the  injurious  act.  Therefore, 
it  was  well  left  to  the  jury,  to  decide  whether  the  drinking  and  intoxica- 
tion of  Bob  were  the  natural  and  probable  consequences  of  selUng  liquor 
to  him.  If  fault  be  found  with  the  instructions  given  on  this  head,  it  is 
that  they  were  too  fa^'orable  to  the  defendant,  in  requiring  that  the  con- 
sequences should  be  found  to  be  probable  as  well  as  natural.  For  prox- 
imate and  natural  consequences,  not  controlled  by  the  unforeseen 
agency  of  a  moral  being,  capable  of  discretion,  and  left  free  to 
choose,  or  by  some  unconnected  cause  of  greater  influence,  a  wrong- 
doer must  generally  answer,  however  small  was  the  probabihty  of  their 
occurrence.  In  many  instances,  the  will  of  a  slave,  as  a  controlling 
cause,  would  be  found  as  feeble  as  was  the  will  of  a  child  that  received 
damage  from  a  cart  left  carelessly  in  the  street,  which  he  unlawfully  at- 
tempted to  drive.  (1  Adol.  &  El.  N.  S.  28.)  Often  the  intervention 
of  a  third  person's  will,  influenced  by  the  injurious  act,  has  no  effect 
in  rendering  consequences  too  remote.  (1  Ad.  &  El.  43;  2  C.  Mer.  & 
Rose.  707.) 

The  defendant,  however,  has  further  insisted  that  if  the  drinking 
and  intoxication  were  the  proximate  and  natural  consequences  of  his 
act,  the  exposure  and  death  were  not:  but  that  the  death  resulted  mainly 
from  the  ex-posure,  and  not  from  the  intoxication  only.  It  may  well  l)e 
said,  (speaking  in  the  language  of  everyday  Hfe,  which  attempts  no  phil- 
osophical analysis,)  that  the  exposure  was  the  immediate  effect  of  the 
intoxication,  and  that  the  two  produced  the  death.  Thus,  without  any 
unconnected  influence  to  be  perceived,  the  death  has  come  from  the  in- 
toxication, which  the  defendant's  act  occasioned.  The  defendant  cannot 
complain  that  an  agent,  which  his  own  act  naturally  brought  into  opera- 
tion, has  occurred  to  produce  the  result.  The  proximity  in  order  of 
events,  and  intimacy  of  relation  as  cause  and  effect,  between  the  injurious 
act  and  the  damage  are  as  great  here  as  in  various  cases  which  have  been 
cited.  (17  Pick.  78;  3  Scott  New  R.  386;  17  Wend.  71;  9  Wend.  325; 
11  East,  571;  and  the  cases  before  cited.) 

The  jury  have  decided  the  facts,  and  this  court  is  of  opinion  that  under 
the  inferences  which  must  be  drawn  from  the  finding,  the  verdict  is  free 
from  the  objection  that  the  damages  were  too  remote. 


204  GRAVES   V.   JOHNSON.  [CHAP.    III. 

The  instructions  concerning  a  delivery  to  Bass,  as  an  instrument  of 
Bob,  are  approved. 

The  motion  is  dismissed. 
Withers,  J.,  ha\dng  been  of  counsel  in  this  cause,  gave  no  opinion. 


GRAVES  V.  JOHNSON., 
Supreme  Judicial  Court  of  Massachusetts,  1901. 

[Reported  179  Mass.  58.] 

Holmes,  C.  J.  This  is  the  second  time  that  this  case  comes  before 
this  court.  156  Mass.  211.  It  is  a  suit  for  the  price  of  intoxicating 
liquors  sold  here.  At  the  first  trial  it  was  found  that  they  were  sold 
with  a  view  to  their  being  resold  by  the  defendant  in  Maine  against 
the  laws  of  that  State;  and  on  that  state  of  facts  it  was  held  that  the 
action  would  not  lie.  At  the  second  trial  it  was  found  that  the  plain- 
tiffs' agent  supposed,  rightly,  that  the  defendant  intended  to  resell 
the  liquors  in  Maine  unlawfully,  but  that  the  plaintiffs  and  their  agent 
were  and  were  known  by  the  defendant  to  be  indifferent  to  what  he 
did  with  the  goods,  and  to  have  no  other  motive  or  purpose  than  to 
.sell  them  in  Massachusetts  in  the  usual  course  of  business.  Seemingly 
the  plaintiffs  did  not  act  in  aid  of  the  defendant's  intent  beyond  selling 
him  the  goods.  The  judge  refused  to  rule  that  the  plaintiffs'  knowledge 
of  the  defendant's  intent  would  prevent  their  recovery,  and  the  case 
is  here  again  on  exceptions. 

The  principles  involved  are  stated  and  some  of  the  cases  are  col- 
lected in  the  former  decision.  All  that  it  is  necessary  for  us  to  say 
now  is  that  in  our  opinion  a  sale  otherwise  lawful  is  not  connected  with 
subsequent  unlawful  conduct  by  the  mere  fact  that  the  seller  correctly 
divines  the  buyer's  unlawful  intent,  closely  enough  to  make  the  sale 
unlawful.     It  will  be  obser^•ed   that  the  finding  puts  the  plaintiff's' 


SECT.    III.]  REGINA    I'.    FRETWELL.  205 

knowledge  of  the  defendant's  intent  no  higher  than  an  uncommuni- 
cated  inference  as  to  what  the  defendant  was  Hkely  to  do.  Of  course 
the  defendant  was  free  to  change  his  mind,  and  there  was  no  commun- 
icated desire  of  the  plaintiffs  to  cooperate  with  the  defendant's  present 
intent,  such  as  was  supposed  in  the  former  decision,  but  on  the  con- 
trary an  understood  indifference  to  everything  beyond  an  ordinary 
sale  in  Massachusetts.  It  may  be  that,  as  in  the  case  of  attempts, 
(Commonwealth  v.  Peaslee,  177  Mass.  267;  Commonwealth  v.  Kennedy, 
170  Mass.  18,  22,)  the  line  of  proximity  will  vary  somewhat  according 
to  the  gravity  of  the  evil  apprehended,  Steele  v.  Curie,  4  Dana,  381, 
385-388;  Hanauer  v.  Doane,  12  Wall.  342,  346;  Bickel  v.  Sheets,  24 
Ind.  1,  4,  and  in  different  courts  with  regard  to  the  same  or  similar 
matters.  Compare  Hubbard  v.  Moore,  24  La.  An.  591;  Michael  v. 
Bacon,  49  Mo.  474,  with  Pearce  v.  Brooks,  L.  R.  1  Ex.  213.  But  the 
decisions  tend  more  and  more  to  agree  that  the  connection  with  the 
unlawful  act  in  cases  like  the  present  is  too  remote.  M'IntjTe  v. 
Parks,  3  Met.  207;  Sortwell  v.  Hughes,  1  Curt.  C.  C.  244,  247;  Green 
V.  Collins,  3  Cliff.  494;  Hill  v.  Spear,  50  N.  H.  253;  Tracy  v.  Talmage, 
4  Kernan,  162;  Distilling  Co.  i\  Nutt,  34  Kans.  724,  729;  Webber 
V.  Donnelly,  33  Mich.  469;  Tuttle  v.  Holland,  43  Vt.  542;  Braunn 
V.  Keally,  146  Penn.  St.  519,  524;  Wallace  v.  Lark.  12  So.  Car.  576, 
578;  Rose  v.  Mitchell,  6  Col.  102;  Jameson  v.  Gregory,  4  Met.  (Ky. 
363,  370;  Bickel  v.  Sheets,  Hubbard  v.  Moore,  and  Michael  v.  Bacon), 
uhi  supra. 

Although  a  different  rule  was  assumed  in  Suit  v.  Woodhall,  113  Mass. 
391,  it  will  be  seen  that  it  equally  was  assumed  by  the  instructions 
given  at  the  trial,  and  that  the  exceptions  and  the  point  decided  in 
that  case  concerned  only  the  imputation  to  the  plaintiffs  of  their 
agent's  knowledge.  M'Intyre  v.  Parks  never  has  been  overruled. 
Dater  v.  Earl,  3  Gray,  482;  Webster  v.  Munger,  8  Gray,  584,  587; 
Adams  v.  Coulhard,  102  Mass.  167,  172;  Milliken  v.  Pratt,  125  Mass. 
374,  376. 

Exceptions  to  the  admission  of  letters  of  the  plaintiffs'  agent  to 
them  for  the  purpose  of  showing  what  they  knew  are  not  argued. 

Exceptions  overruled. 


REGINA   V.  FRETWELL. 

Crown  Case  Reserved.     1862. 

[Reported  Leigh  Sf  Cave,  161.] 

Erle,  C.  J.  The  prisoner  in  this  case  was  convicted  of  murder  ;  and 
the  question  for  us  is  whether,  upon  the  facts  stated,  he  was  properly 
convicted.     The  deceased,  Elizabeth  Bradlej',  was  pregnant,  and,  for 


206  REGINA   V.    FRETWELL.  [CHAP.    III. 

the  purpose  of  producing  alwrtion,  took  a  dose  of  corrosive  sublimate, 
vvliicli  had  been  procured  for  iier  by  the  prisoner  with  a  full  knowledge 
of  the  purpose  to  which  it  was  to  be  applied.  In  procuring  the  poison 
the  prisoner  had  acted  at  the  instigation  of  the  deceased,  and  under 
the  influence  of  threats  bv  her  of  self-destruction  if  the  means  of  pro- 
curing  abortion  were  not  supplied  to  her.  Then  the  case  sets  out  the 
reasons  which  caused  the  woman  to  be  so  desirous  of  preventing  her 
state  l)ecoming  known.  The  jur}'  expressl\-  negatived  the  fact  of  the 
prisoner  having  administered  the  poison  to  the  deceased,  or  caused  it 
to  be  taken  b}-  her ;  but  the}'  found  that  he  had  delivered  it  to  her  with 
a  knowledge  of  the  purpose  to  which  she  intended  to  apply  it,  and  that 
he  was  therefore  accessory  before  the  fact  to  her  taking  poison  for  the 
purpose  of  procuiring  at)ortion.  Chief  Justice  Cockburn  thereupon, 
on  the  autliorit}'  of  Russell's  Case,  directed  the  jury  to  return  a  verdict 
of  wilful  murder  against  the  prisoner,  and  reserved  the  case  for  the 
consideration  of  this  Court.  Now,  upon  the  facts  stated,  the  present 
case  appears  to  me  to  differ  materially  from  that  of  Rex  v.  Russell. 
There  the  prisoner,  finding  the  woman  to  be  pregnant,  of  his  own 
motion  procured  arsenic,  gave  it  to  the  woman,  and  instigated  and  per- 
suaded her  to  take  it,  for  the  purpose  of  procuring  a  miscarriage;  and 
the  woman  took  it  knowingl}',  with  the  like  intent  of  procuring  a  mis- 
carriage, and  thereby  caused  her  own  death.  The  Judges  held  that  it 
was  a  misdemeanor  in  her  to  take  arsenic  for  the  purpose  of  procuring 
abortion  ;  that,  having  thereby  caused  her  own  death,  she  was  felo  de 
se  ;  and  that  the  prisoner  was  an  accessor}'  before  the  fact  to  the 
murder.  Now,  there  appears  to  me  to  be  a  ver}'  marked  distinction 
between  the  conduct  of  the  prisoner,  Fretwell,  in  this  case,  and  the  con- 
duct of  the  prisoner,  Russell,  in  the  case  I  have  already  referred  to. 
In  tiie  latter  case,  Russell  instigated  and  persuaded  the  woman  to  take 
the  arsenic.  In  the  present  case,  the  prisoner  was  unwilling  that  the 
woman  should  take  the  poison.  He  procured  it  for  her  at  her  instiga- 
tion, and  under  a  threat  by  her  of  self-destruction.  He  did  not  admin- 
ister it  to  her,  or  cause  her  to  take  it,  and  the  facts  of  the  case  are 
quite  consistent  with  the  su|)position  tliat  he  hoped  and  expected  that 
she  would  change  her  mind  and  would  not  resort  to  it.  Then,  the  cases 
being  distinguishable,  it  is  unnecessarv  to  decide  whether  in  this  case 
the  woman  was  felo  de  se.  I  am  the  more  fortified  in  my  opinion  by 
looking  at  the  late  statute  for  consolidating  and  amending  the  law 
relating'  to  offences  against  the  person.  By  sect.  58  of  that  statute, 
any  woman  administering  poison  to  herself  with  intent  to  procure  mis- 
carriage, and  any  person  administering  it  to  her  or  causing  it  to  be 
taken  1)\'  her  with  the  like  intent,  is  guilty  of  felon}'.  By  sect.  59,  any 
one  supplying  or  procuring  any  poison,  knowing  that  the  same  is 
intended  to  be  used  with  intent  to  procure  miscarriage,  is  guilty  of  a 
misdemeanor.  The  crime,  therefore,  of  procuring  or  supplying  the 
poison  is  one  of  a  totally  different  character  from  that  of  administering 
it,  or  causing  it  to  be  taken.  My  opinion  is,  that  the  prisoner  was  not 
guilty  of  murder,  and  that  the  conviction  must  be  quashed. 


SECT.    III.]  ANDREWS   V.    KINSEL.  207 

Martin,  B.  I  am  of  the  same  opinion.  The  acts  of  the  prisoner 
were  too  remote  from  the  death  of  the  woman  to  make  him  guilty -of 
murder. 

Channell,  B.  I  am  of  the  same  opinion  with  the  Lord  Chief  Justice, 
and  for  the  reasons  which  he  has  given. 

Blackburn,  J.  I  am  of  tlie  same  opinion,  According  to  the  finding 
of  the  jur}',  tlie  prisoner  neither  administered  the  poison  nor  caused  it 
to  be  taken  by  the  woman,  and  therefore  was  not  a  party  to  what  took 
place  in  such  a  way  as  to  make  what  he  did  amount  to  murder. 

Keating,  J.     I  am  of  the  same  opinion.  Convictio?i  quashed. 


ANDREWS  V.  KINSEL. 
Supreme  Court  of  Georgia,  1901. 

[Reported  114  Ga.  390.] 

Lewis,  J.  Andrews  &  Co.  sued  Kinsel  for  $500  damages,  making 
by  their  petition  substantially  the  following  case:  The  plaintiffs 
rented  from  the  defendant  a  storehouse  in  the  city  of  Columbus,  in 
which  they  transacted  a  mercantile  business ;  and  it  was  the  duty  of  the 
defendant,  as  the  landlord  of  the  plaintiffs,  to  keep  the  premises  in 
good  repair.  The  defendant  also  owned  the  storehouse  adjoining  that 
rented  by  the  plaintiffs,  a  partition  wall  divifling  the  two  stores.  On 
a  named  day  the  defendant,  by  his  agents  and  servants,  entered  his 
storehouse  adjoining  the  plaintiffs'  place  of  business  for  the  purpose  of 
making  certain  repairs  thereon,  and  in  making  the  repairs  the  partition 
between  the  two  storehouses  was  removed,  or  partly  removed,  leaving 
the  store  of  the  plaintiffs  exposed  and  unprotected;  and  upon  lea\'ing 
the  place  at  night  the  defendant's  agents  and  servants  negligently 
and  carelessly  left  open  two  rear  windows  in  the  store  next  to  that  of 


208  ANDREWS   v.    KIXSEL.  [CHAP.    III. 

the  plaintiffs,  thereby  rendering  it  easy  to  effect  an  entrance  into  the 
plaintiffs'  store  through  the  rear  windows  and  the  opening  in  the  parti- 
tion. On  the  night  in  question  a  burglar  or  burglars  did  gain  entrance 
to  the  plaintiffs'  store  in  the  manner  described,  and  steal  from  the 
plaintiffs  a  large  quantity  of  merchandise,  to  their  damage  as  afore- 
said. No  notice  was  given  to  the  plaintiffs  that  the  partition  had  been 
removed  or  that  the  windows  had  been  left  open,  and  this,  also,  is 
alleged  to  have  been  negligence.  The  defendant  filed  a  demurrer  to 
the  petition,  which  was  overruled,  and  he  also  filed  an  answer,  in  which 
he  denied  liability,  and  denied  that  he  had  been  negligent  as  alleged. 
The  case  went  to  trial,  and,  at  the  conclusion  of  the  evidence  for  the 
plaintiffs,  the  court,  on  motion  of  defendant's  counsel,  granted  a  non- 
suit. To  this  ruling  the  plaintiffs  excepted,  and  the  defendant  filed  a 
cross  bill  of  exceptions  in  wliich  he  assigned  error  upon  the  overruling 
of  his  demurrer. 

1.  As,  in  our  opinion,  the  court  below  should  have  sustained  the  de- 
murrer filed  by  the  defendant,  and  the  refusal  to  do  so  was  reversible 
error,  the  writ  of  error  issued  upon  the  main  bill  of  exceptions  will, 
under  the  ruling  of  this  court  in  Rives  v.  Rives,  113  Ga.  392,  be  dis- 
missed. 

2.  It  is  unnecessary  to  argue,  or  to  cite  aiithorities  to  sustain,  the 
well-settled  legal  principle  that,  to  enable  one  to  recover  for  damages 
resulting  from  the  negligent  conduct  of  another,  it  must  appear  that 
the  negligence  of  the  defendant  was  the  proximate  cause  of  the  injury 
sustained.  It  is  also  a  well-recognized  principle  that  where  there 
has  intervened  between  the  defendant's  negligent  act  and  the  injury 
an  independent  illegal  act  of  a  third  person,  producing  the  injury, 
and  without  which  it  would  not  have  happened,  the  latter  is  properly 
held  the  proximate  cause  of  the  injury,  and  the  defendant  is  excused. 
8  Am.  &  Eng.  Enc.  Law  (2d  ed.)  580.  As  is  stated  in  1  Shear.  & 
R.  Neg.  (5th  ed.)  §  25,  "The  defendant's  negligence  may  put  a  temp- 
tation in  the  way  of  another  person  to  commit  a  WTongful  act  by 
which  the  plaintiff  is  injured,  and  3'et  the  defendant's  negligence  may 
be  in  no  sense  a  cause  of  the  injury."  Thus,  in  Tennessee,  a  defendant 
was  held  not  liable  for  the  negligent  failure  to  keep  a  night  watchman  on 
guard  over  the  property  of  the  plaintiff,  as  a  result  of  which  an  incen- 
diary set  fire  to  the  property.  State  v.  Ward,  9  Heisk.  133.  In  New 
York  it  is  held  that  the  relation  of  cause  and  effect  between  the  negli- 
gence of  the  defendant  and  the  injury  to  the  plaintiff  cannot  be  made 
out  by  including  the  independent  illegal  acts  of  third  persons,  and  that 
the  defendant  cannot  be  made  accountable  for  the  unauthorized  il- 
legal acts  of  other  persons,  although  his  own  conduct  may  have  in- 
(hrectly  induced  or  incited  the  commission  of  the  acts.  Olmstead  v. 
Brown,  12  Barb.  662.  And  in  Oain  v.  Petrie,  6  Hill,  524,  the  following 
language  is  used:  "To  maintain  a  claim  for  special  damages,  they  must 
appear  to  be  the  legal  and  natural  consequences  arising  from  the 


SECT.    III.]  HENDERSON   V.    DADE    COAL   CO.  209 

• 

tort,  and  not  from  the  wrongful  act  of  a  third  party  remotely  induced 
thereby."  See,  also,  Shugart  v.  Egan,  S3  111.  56;  Bosworth  v.  Brand, 
1  Dana,  377;  Carpenter  v.  Railroad  Co.,  13  App.  Div.  328,  43  N.  Y. 
Supp.  203.  This  principle  is  also  well  established  in  Georgia  by  the 
cases  of  Belding  v.  Johnson,  86  Ga.  177,  and  Henderson  v.  Coal  Co., 
100  Ga.  568.  In  the  former  case  it  was  held  that  a  widow  could  not 
recover  damages  of  a  barkeeper  for  the  liomicide  of  her  husljand, 
who  was  killed  in  an  encounter  with  a  third  person ;  the  quarrel  leading 
up  to  the  encounter  ha\ing  been  the  result  of  intoxication  produced  l)y 
liquor  illegally  sold  to  the  slayer  of  plaintiffs  husband  by  the  barkeeper. 
In  the  Henderson  Case  the  lessee  of  a  con^-ict  was  held  not  liable  for 
the  criminal  act  of  tlie  con^^ct,  by  which  a  third  party  suffered  damage, 
although  the  lessee  negligently  placed  it  in  the  power  of  the  con\'ict 
to  commit  the  crime.  These  cases,  it  will  be  seen,  are  closely  in  point. 
The  rule  is  aptly  and  rather  quaintly  stated  in  Whart.  Neg.  (2d  ed.) 
§  134,  in  the  following  language:  "I  am  negligent  on  a  particular  sub- 
ject-matter as  to  which  I  am  not  contractually  bound.  Another  per- 
son, mo\'ing  independently,  comes  in  and  either  negligently  or  mali- 
ciously so  acts  as  to  make  my  negligence  injurious  to  a  third  person.  If 
so,  the  person  so  intervening  acts  as  a  non-conductor,  and  insulates 
my  negligence,  so  that  I  cannot  be  sued  for  the  mischief  which  the 
person  so  intervening  directly  produces."  Applying  these  principles 
to  the  case  now  before  us,  it  is  manifest  that  the  plaintiffs  did  not  make 
out  a  cause  of  action  by  their  petition.  Granting  as  true  all  of  their 
allegations  as  to  the  negligence  of  the  defendant,  it  is  also  true,  upon 
the  face  of  their  pleadings,  that  there  intervened  as  a  direct  cause  be- 
tween the  negligence  of  the  defendant  and  the  damage  sustained  by 
themselves  the  independent  criminal  act  of  a  responsiljle  human  agency. 
The  demurrer  to  the  petition  should  have  been  sustained. 

Writ  of  error  on  main  bill  of  exceptions  dismissed.     Judgment  on 
cross  bill  reversed.      All  the  justices  concurring. 


HENDERSON  v.   DADE  COAL  CO. 
Supreme  Court  of  Georgia,  1897. 

[Reported  100  Ga.  568.] 

Lumpkin,  P.  J.  The  declaration  now  under  review  discloses  one  of 
the  very  saddest  cases  with  which  it  has  ever  been  our  fortune  to  deal. 
The  plaintiff.  Miss  Maggie  Henderson,  was,  at  the  hands  of  a  brutal 
convict,  subjected  to  injury,  wrong,  and  agony,  both  mental  and  phy- 
sical, a  recital  of  which  would  make  one  of  the  darkest  pages  in  our 
reports.    Every  member  of  this  bench  was  deeply  moved  and  affected 


210  HENDERSON   V.    DADE    COAL   CO.  [ciIAP.    III. 

by  the  account  which  the  declaration  gives  of  her  bhghted  life.  There 
is  not,  perhaps,  in  the  annals  of  litigation,  a  story  of  wrong  which  ap- 
peals more  pathetically  for  human  sympathy.  Were  we  to  follow  the 
instincts  of  our  hearts,  we  would  be  under  the  strongest  impulse  to  sus- 
tain the  plaintiff's  action;  but  as  magistrates,  under  the  solemn  duty 
of  enforcing  what  we  conscientiously  believe  to  be  the  law  of  the  case, 
we  are  compelled  to  hold  that  the  trial  court  flid  not  err  in  sustaining 
the  various  demurrers  alleging  that  no  cause  of  action  was  set  forth. 
Omitting  any  mention  of  numerous  questions  the  decision  of  which  is 
not,  in  the  view  we  take  of  the  case,  in  the  least  degree  essential  to  its 
determination,  we  shall  confine  ourselves  to  a  very  brief  discussion  of 
the  propositions  announced  in  the  headnotes,  from  which  the  nature 
of  the  case,  so  far  as  now  material,  will  be  readily  apprehended.  The 
case,  at  last,  depends  upon  the  question,  whether  the  custodians  of 
such  a  con\'ict  as  is  described  in  the  third  headnote  are  legally  respon- 
sible in  damages  for  the  consequences  of  crimes  committed  by  him  while 
at  large,  and  in  the  unrestrained  control  of  his  own  movements,  by  their 
permission,  or  because  of  their  negligence  in  failing  to  keep  him  safely 
confined.^  We  have  no  doubt  that,  as  a  general  rule,  a  criminal  tort 
committed  by  such  a  couAact  would  be  too  remote  a  consequence  of 
his  keepers'  misconduct  in  the  premises  to  render  them  responsible  to 
the  person  injured.  While  cases  may  arise  in  which  this  general  rule 
should  be  varied  —  as  where  it  appears  that  the  custodians  of  the  con- 
vict were  in  some  way  connected  with  the  perpetration  of  the  tort, 
or  had  reasonable  grounds  for  apprehending  that  it  would  be  commit- 
ted —  nothing  is  alleged  in  the  present  declaration  to  bring  this  case 
within  such  an  exception.  The  tlirect  and  proximate  cause  of  the  in- 
juries inflicted  upon  IVIiss  Henderson  was  the  independent  action  of 
the  con\'ict  himself.  He,  though  A-icious,  brutal,  and  infamous,  was 
nevertheless  an  accountable  human  agent.  While,  according  to  the 
plaintiff's  averments,  he  was  not  restrained  by  any  conxictions  of 
right  and  wrong,  nor  governed  by  any  principles  of  morality,  the 
declaration  does  not  attempt  to  allege  that  he  was  not  a  rational 
person,  fully  amenable  to  the  laws  both  of  God  and  of  man.    That  he 

1  That  a  "felony"  convict,  about  thirty-seven  years  olti,  who  had  been  continu- 
ously in  the  penitentiary  for  about  twelve  years  and  who  had  five  times  escaped 
therefrom,  was  "a  man  in  robust  and  vigorous  health,  immoral,  brutish,  devilish, 
of  vicious  habits,  of  violent  passions,  prone  to  desire  for  sexual  intercourse,"  and  a 
person  "not  restrained  by  any  convictions  of  right  and  wrong,  or  governed  by  any 
principles  of  morality,"  and  that  "all  of  these  conditions  and  things"  concerning 
him  "were  well  known  and  were  understood"  by  his  custodians,  "or  ought  to  have 
been,  because  of  what  they  knew  of  his  said  person,  history,  character  and  surround- 
ings," did  not,  without  more,  afford  such  cause  for  apprehending  that  he  would,  when 
an  opportunity  occurred,  commit  the  crime  of  rape  upon  an  unprotected  woman,  as 
to  subject  his  custodians  to  liability  in  damages  for  the  perpetration  by  him  of  this 
offense  at  a  time  when,  because  of  their  fault,  he  was  at  large  and  in  the  unrestrained 
control  of  his  own  movements. 


SECT.    III.]  HENDEKSON   V.    DADE    COAL   CO.  211 

was  prone  to  a  desire  for  sexual  intercourse  did  not,  by  any  means, 
render  him  an  exception  to  a  law  of  nature  which  universally  pre- 
vails in  the  animal  kingdom,  whether  as  applied  to  human  beings  or 
animals  of  lower  orders.  Vile  as  this  man  was,  it  cannot  be  held  that 
the  defendants  could  reasonably  have  anticipated  that  he  would, 
upon  the  first  opportunity,  assault  and  ra\'ish  any  defenseless  woman 
whom  he  might  encounter.  He  was  equally  liable  to  commit  some  other 
heinous  crime;  and  they  were  not  bound  to  presume  that  he  would 
commit  any  crime  at  all.  The  State  requires  the  lessees  of  convicts,  at 
the  expiration  of  their  terms,  to  furnish  them  transportation  to  the 
counties  in  which  they  were  con^^cted.  Thus  the  law  clearly  contem- 
plates that  these  criminals  shall  be  set  at  liberty  in  the  very  com- 
munities whence  they  came.  It  can  hardly  be  questioned  that  scores, 
perhaps  hundreds,  of  convicts,  just  as  bad  as  the  one  now  under  consid- 
eration, are,  from  time  to  time,  set  at  large  by  the  law's  command. 
If  there  was  reason  to  apprehend  that  couAncts  of  this  depraved  t}npe 
would,  upon  regaining  their  liberty,  commit  such  crimes  as  that  com- 
plained of  in  the  present  case,  it  would  seem  that  the  true  policy  of  the 
law  would  be  to  keep  them  imprisoned  during  their  lives.  That  such 
is  not  the  policy  of  the  law  is  due  to  the  fact  that  reason  for  apprehend- 
ing such  outrages  does  not  really  exist. 

The  true  rule  applicable  in  a  case  like  the  present  was  recognized 
and  stated  by  this  court  in  the  case  of  Perry  v.  Railroad,  66  Ga.  751, 
wherein  it  was  said  that,  in  order  to  entitle  a  party  to  recover  damages 
on  account  of  the  negligence  of  another,  it  should  appear  that  the 
damages  were  the  natural  and  proximate  result  of  such  negligence; 
"for,  should  it  appear  that,  but  for  the  intervention  of  a  responsible 
third  party,  the  defendant's  negligence  would  not  have  caused  damage 
to  the  plaintiff,  then  the  defendant  is  not  liable  to  plaintiff,  for  the 
reason  that  the  causal  connection  between  negligence  and  damage  is 
broken  by  the  interposition  of  an  independent,  responsible  human 
action."  In  support  of  this  doctrine,  Judge  Stewart,  who  presided 
in  the  place  of  Chief  Justice  Jackson,  disqualifiefl,  cited  Field,  Dam., 
§§  13,  32,  52,  53,  78;  Wayne,  Dam.,  §25;  Whart.  Neg.,  §  134;  Wait, 
Act.  &  Def.  tit.  "Damages."  It  is  true  that  in  the  case  just  cited  the 
action  w^as  based  upon  a  tort  of  an  altogether  different  character, 
but  the  principle  announced  controls  tlie  case  at  bar.  The  case  of  Beld- 
ing  V.  Johnson,  86  Ga.  177,  also  has  some  bearing  upon  the  question 
at  issue,  it  being  there  held  that  the  tleath  of  the  plaintiff's  husband, 
who  was  killed  by  a  man  under  the  influence  of  liquor,  who,  when  in 
this  condition,  was  \-iolent  and  dangerous,  was  not  occasioned  by  the 
act  of  a  barkeeper  who  had  furnished  liquor  to  the  slayer  when  he  was 
already  drunk,  and  had  failed  to  protect  the  deceased  from  the  homi- 
cidal assault  made  upon  him  in  the  barkeeper's  place  of  business. 
Although  the  latter  Aiolated  a  penal  statute  of  this  State  in  so  fur- 
nishing the  liquor,  it  was,  in  effect,  held  that  he  was  not  bound  to 


212  HENDERSON   V.    DADE    COAL   CO.  [CHAP.    III. 

anticipate  that  this  unlawful  conduct  on  his  part  would  result  in  a 
homicide.  A  somewhat  similar  question  was  dealt  vinth  in  Shugart  r. 
Egan,  83  111.  5().  There  the  person  furnished  with  the  intoxicating 
liquors  was  himself,  in  consequence  of  abusive  language  used  to 
another,  assaulted  and  killed.  In  a  sense,  the  furnishing  of  the  liquor 
was  an  indirect  cause  of  his  death,  but  the  court  held  it  was  not  the 
efficient  and  proximate  cause.  In  a  case  decided  by  the  Supreme 
Court  of  Minnesota  (Swinfin  v.  Lowry,  34  N.  W.  22)  it  appeared 
that  a  minor  person  of  the  age  of  18,  upon  inWtation  of  the  de- 
fendants, ch-ank  intoxicating  liquors  with  them  and  their  friends  at 
divers  saloons  several  times  during  the  same  evening,  some  of  the 
liquor  being  ordered  and  paid  for  by  the  defendants  themselves.  "  He 
became  intoxicated  and  quarrelsome,  and  committed  an  assault  upon 
plaintiff,  resulting  in  serious  injury  to  him,"  but  "was  not  incited 
thereto  by  the  defendants,  and  it  was  his  own  voluntary  act.  In  an 
action  against  them  by  the  plaintiff  for  damages,  on  the  ground  that 
the  assault  was  the  result  of  their  acts  in  furnishing  the  liquor  supplied 
to  the  minor,"  the  re\'iewing  court  held  "that  the  damages  were  too 
remote,  and  were  not  to  be  deemed  the  natural  and  proximate  result 
of  the  alleged  wrongful  acts  of  the  defendants."  A  case  which,  upon 
its  facts,  is  still  more  closely  in  point,  is  that  of  Hullinger  v.  Worrell, 
83  111.  220.  It  was  there  held  that  a  sheriff  who  negligently  permitted 
the  escape  of  a  prisoner  in  his  custody  under  an  indictment  for  an  as- 
sault with  intent  to  murder  was  not  liable  in  damages  for  the  conse- 
quences of  a  subsequent  assault  by  the  escaped  prisoner  upon  the  same 
person  upon  whom  the  indictment  in  question  charged  that  the  original 
assault  had  been  committed.  This  decision  was  based  explicitly  upon 
the  proposition  that  the  act  of  the  prisoner,  after  regaining  his  lib- 
erty, was  not  the  natural  and  probable  consec[uence  of  the  escape. 
Cases  more  or  less  resembling  the  foregoing  are  quite  numerous,  but 
it  would  not  be  helpful  to  multiply  citations  on  this  line.  The  rule 
of  law  that  damages  arising  ex  delicto  are  not  recoverable  unless 
they  spring  from  the  negligence  or  misconduct  of  the  defendant  is  as 
well  settled  as  any  legal  principle.  The  difficulty  arises  in  its  appli- 
cation to  given  cases.  We  have  been  unalile  to  find  any  case  precisely 
like  the  present,  but  our  minds  have,  without  difficulty,  reached  the 
conclusion  that  none  of  the  lessees  of  penitentiary  con\icts  named  as 
defendants  can  be  made  liable  for  the  crime  committed  in  this  instance. 
Nothing  they  did  or  omitted  was  its  efficient  or  proximate  cause. 
It  was  the  independent  act  of  another,  not  standing  in  any  relation  to 
the  defendants  which  would  render  what  he  did  imputable  to  them. 
The  court  below  was  right  in  sustaining  the  demurrers  and  dismissing 
the  action. 

Judgment  affirmed. 


SECT,    III.]  MILOSTAN    V.    CHICAGO.  213 


MILOSTAN  V.  CHICAGO. 
Appellate  Court,  Illinois,  1909. 

[Reported  148  III.  App.  540.] 

It  appears  from  the  e\'idence  that  there  is  a  brick  building,  fronting 
on  Noble  Street,  at  the  southwest  corner  of  Noble  and  Blackhawk 
streets.  The  building  stands  up  close  to  the  sidewalk  on  .Blackhawk 
street.  On  the  latter  street,  along  the  side  of  the  building,  there  is  an 
opening  or  area-way  in  the  cement  sidewalk.  This  area-way  is  variously 
stated  to  be  three  to  six  feet  wide,  about  six  feet  in  depth  and  of  con- 
siderable length.  About  5  o'clock  in  the  afternoon  in  question,  Jozef 
Milostan,  with  two  friends,  Bernard  Piotrowski  and  John  Magorski, 
came,  walking  east,  along  the  sidewalk  at  the  side  of  this  building. 
Bernard  walked  to  the  left  of  plaintiff  and  John  a  little  behind  the  two. 
When  they  were  within  a  few  feet  of  Noble  street  Bernard  suddenly 
stepped  behind  Jozef,  grabbed  him  by  the  two  arms  and  pushed  or 
shoved  him  off  the  sidewalk  into  the  area-way.  Bernard  testified  that 
he  did  it  intentionally,  to  scare  Jozef —  "fool"  him  or  have  some  fun 
with  him,  but  that  he  did  not  intend  to  hurt  him.  Jozef  suffered 
a  compound  fracture  of  the  bone  extending  from  the  shoulder  to  the 
elbow-joint  in  the  left  arm,  and  there  was  both  a  transverse  and  a 
longitudinal  fracture.  It  is  probably  a  permanent  injury.  There  is 
no  question,  upon  the  e\ddence,  but  that  the  act  of  Bernard  was  a  wil- 
ful, intentional  act.  The  act  was  neither  an  act  of  negligence  nor  an 
accident. 

Chytraus,  J.  PlaintiflF  can  recover  only  if  he  succeeds  in  estab- 
lishing one  of  two  propositions,  namely:  The  negligence  of  the  city, 
in  lea\ang  unguarded  the  area-way,  was  the  proximate  cause  of  the 
plaintiif's  injury;  or,  the  combined  and  concurring  negligence  of 
Bernard  Piotrowski  and  the  city  was  the  proximate  cause  of  the 
plaintiff's  injury.  If  the  act  of  Piotrowski  was  the  proximate  cause, 
then  the  plaintiff  cannot  recover.  No  matter  how  negligent  the  city 
was,  if  its  negligence  was  not  the  proximate  cause,  or  one  of  the  ele- 
ments in  the  proximate  cause,  the  city  is  not  liable.  There  is,  in  this 
case,  no  material  fact  in  dispute.  "  It  is  a  general  principle  of  juris- 
prudence, under  both  the  ci\dl  and  common  law,  that,  to  entitle  a  party 
to  recover  for  damages  alleged  to  have  been  sustained  in  consequence 
of  the  negligence  of  another,  there  must  not  only  be  negligence  in 
fact,  but  it  must  have  been  the  proximate  cause  of  the  injury."  C.  & 
A.  R.  R.  Co.  V.  Becker,  76  111.  2.5,  30. 

At  the  start,  it  is  well  to  have  a  clear  understanding  of  the  meaning 


214  MILOSTAN    v.    CHICAGO.  [CHAT.    111. 

of  the  term  proximate  cause.  The  Century  Dictionary  defines  "  prox- 
imate" to  mean  "next,"  "immediate,"  "without  the  intervention 
of  the  third,"  and  "  proximate  cause"  as  "  tliat  cause  which  immediately 
precedes  and  directly  produces  an  effect,  as  distinguished  from  a  re- 
mote, mediate  or  predisposing  cause."  In  Wabash  R.  R.  Co.  v.  Coker, 
81  111.  App.  660,  which  was  affirmed  in  the  Supreme  Court,  after  hold- 
ing that  "  The  breach  of  duty  upon  which  an  action  is  brought  must  not 
only  be  the  cause,  but  the  proximate  cause,  of  the  damages  to  the 
plaintiff,"  the  court  defined  proximate  cause  by  saying:  "The  proxi- 
mate cause  of  an  event  must  be  understood  to  be  that  which,  in  a 
natural  and  continuous  sequence,  unbroken  by  any  new,  independent 
cause,  produced  an  event,  and  without  which  that  event  would  not 
have  occurred."  In  Strojny  r.  Griffin  Wheel  Co.,  116  111.  App.  550, 
552,  this  court  adopted  that  definition  and  added:  "An  intervening 
sufficient  cause  is  a  new  and  independent  ^'orce  which  breaks  the 
causal  connection  between  the  original  wrong  and  the  injury,  and  it 
becomes  the  direct  and  immediate  —  that  is,  the  proximate  —  cause 
of  the  injury.  The  test  is,  was  it  a  new  and  independent  force,  acting 
in  and  of  itself  in  causing  the  injury,  and  superseding  the  original 
wrong  so  as  to  make  it  remote  in  the  chain  of  causation?"  In  Good- 
lander  Mill  Co.  V.  Standard  Oil  Co.,  11  C.  C.  A.  253,  63  Fed.  400,  a  case 
in  which  there  was  a  bitter  legal  contest  between  able  counsel,  we  find 
the  definition  stated  as  follows:  "The  proximate  cause  of  an  injury 
is  that,  cause  which,  in  natural  and  continuous  sequence,  unbroken 
by  any  efficient  intervening  cause,  produces  the  injury,  and  without 
which  the  result  would  not  have  occurred.  .  .  .  The  remote  cause 
is  that  cause  which  some  independent  force  merely  took  advantage  of  to 
accomplish  something  not  the  probable  or  natural  effect  thereof." 

Wlien  we  understand  what  is  meant  by  "proximate  cause,"  it  is 
clear,  without  discussion,  that  the  omission  of  the  city,  in  leaving 
unguarded  the  area-way,  was  not  alone  the  proximate  cause  of  the 
plaintiff's  injury,  if  it  was  a  cause  at  all.  Thus  the  plaintiff  fails  in  the 
first  of  the  two  propositions  stated. 

It  is  to  be  noted,  in  connection  .with  the  second  proposition,  that 
the  plaintiff's  position  is,  in  his  brief,  stated  as  follows:  "We  contend 
that  the  negligence  of  the  defendant  contributed  to  the  injury  and  that 
without  the  negligence  of  the  defendant  in  this  regard  the  accident 
could  not  have  occurred."  It  is  true  that  where  an  "  injury  is  the  result 
of  the  negligence  of  the  defendant  and  that  of  a  third  person;  or  of 
the  defendant  and  an  inevitable  accident;  or  an  inanimate  thing  has 
contributed  with  the  negligence  of  the  defendant  to  cause  the  injury, 
the  plaintiff  may  recover,  if  the  negligence  of  the  defendant  was  an 
efficient  cause  of  the  injury."  Pullman  Palace  Car  Co.  v.  Laack,  143 
111.  242,  261.  If  an  act  of  negligence  on  the  part  of  Piotrowski  and  an 
act  of  negligence  on  the  part  of  the  city  combined  or  cooperated  — 
the  two  concerning  i:)roximately,  that  is,  not  necessarily  in  point  of 
time  but  in  causation,  to  the  effect  —  so  as  to  injure  the  plaintiff,  then, 


SECT.    III.]  MILOSTAN   t.    CHICAGO.  215 

unquestionably,  both  would  be  liable  to  him,  jointly  or  severally.     It 
would,  however,  in  such  case,  be  necessary  in  order  to  create  liability 
upon  both  that  negligence  on  the  part  of  both  should  contribute  proxi- 
mately, that  is,  as  an  element  in  the  proximate  cause,  and  without 
intervention  of  another  independent  force  as   the  producing  cause. 
In  the  case  a.t  bar  it  is  to  be  observed  that  the  concurring  act  of  Pio- 
trowski  was  not  merely  an  act  of  negligence  but  it  was  an  intentional, 
wilful  and  deliberate  act.     That  is  to  say,  the  act  was  wilful  whether 
or  not  the  intent  to  injure  was  present.     On  the  other  hand,  on  the 
part  of  the  city  there  was  merely  the  passive,  omissive  negligence  of 
permitting,  or  leaving  in  an  unguarded  state,  the  area-way,  without 
which  negligence,  it  is  contended,  "the  accident  could  not  have  oc- 
curred."   Passing,  for  a  moment,  the  question  whether  anything  in  the 
evidence  justifies  the  assertion  that  but  for  the  unguarded  state  of  the 
area-way  this  accident  could  not  have  occurred  we  find,  here,  that 
the  act  of  Piotrowski  and  the  omission  of  the  city  are  not  of  the  same 
legal  nature  and  not  on  the  same  legal  level  in  the  law  of  wrongs  to 
persons.     This  raises  a  question  entirely  different  from  that  which 
would  have  arisen,  if  Piotrowski's  act  had  been  one  of  negligence  merely. 
Undoubtedly   the   city   was   guilty   of   negligence   in   permitting   the 
area-way  to  exist  in  the  sidewalk,  and  more  so  in  permitting  it  to  re- 
main unguarded.    But  an  act  of  wilful  \aolence  by  one  person  and  mere 
negligence  chargeable  to  another  person  cannot,  together,  contribute 
so  as  to  become  the  proximate  cause  of  injury  to  a  third  person.    For 
instance,  as  here,  a  wilful  act  of  violence  5f  the  one  and  a  negligent 
physical  condition  chargeable  to  another  are  incompatible  as  joint 
and  contributory  elements  in  one  and  the  same  proximate  cause  of  an 
injury.     In  the  very  nature  of  things,  wilful  \-iolence,  as  a  producing 
or  efficient  cause  of  injury,  will  precede  negligence,  where  they,  in 
point  of  time,  concur  or  co-exist  in  connection  with  the  injury.    What- 
ever the  breach  of  duty  constituting  merely  negligence,  on  the  part  of 
one,  the  interposition,  by  another,  of  wilful  violence,  is,  necessarily, 
an  intervention  of  a  new  and  independent  force,  which  breaks  the 
causal  connection  between  the  negligence  and  the  injury.    The  incon- 
sistency and  incompatibility  between  wilful  violence  and  mere  neg- 
ligence is  such  that  they  cannot  concur  or  co-exist,  in  the  direct  or 
proximate  cause,  except  in  point  of  time;  the  idea  that  they  can  juridi- 
cally be  co-ordinates  in  the  causation  of  an  injury  is  inconceivable. 
Concurrence  in  point  of  time  is  not,  necessarily,  concurrence  in  point 
of  cause.      While  the   two  —  negligence   and   \iolence  —  may  concur 
in  point  of  time,  the  violence  necessarily  precedes  the  negligence  in 
being  the  producing,  direct  and  proximate  cause  of  the  injury.     At 
common  law  there  is  a  distinct  remedy  for  each;  in  the  one  instance 
trespass  and  in  the  other  an  action  on  the  case  lies.    ( 'onceding,  there- 
fore, that  the  negligence  of  the  city  concurred,  in  point  of  time,  with  the 
act  of  Piotrowski,  which  was  an  act  of  wilful  violence,  and  the  injury 


21G  MILOSTAN   V.    CHICAGO.  [CHAP.    III. 

to  plaintiflP  was  thus  effected,  then  the  wilful  violence  of  Piotrowski 
was  the  proximate  cause  and  the  mere  negligence  on  the  part  of  the 
city  was  but  a  remote  cause,  of  the  injury  to  the  plaintiff.  In  no  wise 
can  we  consider  the  act  of  Piotrowski  as  negligence,  merely. 

But,  considering  the  case  from  another  point  of  ^^ew,  we  cannot 
agree  with  plaintiff's  counsel  that  the  negligence  of  the  defendant  was 
the  proximate  cause  of  the  injury.  True,  at  the  place  in  question,  there 
was  a  state  or  condition  of  negligence  created  by  defendant's  failure 
to  exercise  reasonable  care  to  keep  the  sidewalk  —  highway  —  rea- 
sonably safe  for  ordinary  use.  But,  in  this  particular  instance,  the 
plaintiff,  so  far  as  that  particular  negligence  is  concerned,  was  passing 
along  —  by  the  area-way  —  in  safety  and  he  had,  undoubtedly,  the 
hour  of  the  day  being  considered,  observed  the  area-way  and  was 
avoiding  it.  He  had  passed  alongside  of  the  area-way  for  a  considerable 
distance  and  was  nearly  past  it  when  Piotrowski's  act,  availing  itself 
of  the  existing  conditions  and  the  occasion  afforded  by  the  presence  of 
the  area-way,  intervened,  and,  as  the  direct  and  efficient  cause,  brought 
iabout  plaintiff's  injury.  Plainly  plaintiff  would  have  safely  passed 
the  area-way  but  for  the  intervention  of  this  procuring  and  proximate 
cause  of  the  injury.  The  remark  made  by  Dr.  Bishop  in  one  of  his 
excellent  works,  while  discussing  contributory  negligence  on  the  part 
of  a  plaintiff,  is  here,  in  principle,  applicable.  He  says :  "  If,  while  one 
is  negligent  —  perhaps  the  expression  should  be,  in  a  state  of  negligence 
—  another  negligently  employs  an  independent  force,  which,  availing 
itself  of  the  occasion  afforded  by  the  former's  negligence,  works  a  harm 
not  its  natural  and  probable  consequence,  but  an  independent  harm, 
the  first  negligence  is  not  contributory  to  the  second."  Bishop  Non- 
Contract  Law,  §  463.  According  to  the  facts  in  tliis  particular  in- 
stance it  is  clear  that  the  harm  done  plaintiff  was  not  a  natural  con- 
sequence of  the  presence  of  the  area-way  and  therefore  the  condition 
of  the  area-way  was  not,  in  point  of  causation,  the  direct  or  proximate 
cause  of  plaintiff's  injury. 

Plaintiff's  counsel  appear  to  argue  that  the  presence  of  the 
area-way  operated  as  an  incentive  or  inducement  to  Piotrowski,  by 
his  wilful  \'iolence,  to  shove  plaintiff  into  this  area-way.  For,  it  is  , 
argued  "that  without  the  negligence  of  the  defendant  in  this  regard 
the  accident  would  not  have  occurred."  Were  it  true  that  the  presence 
of  the  area-way  did  so  operate  upon  Piotrowski's  mind,  the  city  would 
not,  on  that  account,  be  responsible.  No  one  is  liable  for  more  than  the 
natural  and  probable  consequences  of  his  negligence  and  it  was  neither 
natural  nor  probable  that  the  presence  of  the  area-way  should  so  oper- 
ate. It  would  be  idle  to  speculate  upon  what  would  or  would  not  have 
happened  if  the  area-way  had  been  guarded  or  had  not  been  there, 
with  reference  to  plaintiff  being  injured;  for  whatever  conclusion  one 
would  come  to  would  be  but  a  conjecture.  Upon  the  facts  as  they  are 
the  defendant's  negligence  was  not  the  proximate  cause  of  the  injury. 


SECT.    III.]  MILOSTAN   V.    CHICAGO.  217 

There  was  no  immediate  causal  connection  between  the  presence  of  the 
area-way  and  the  happening  of  the  injur}'.  An  element  intervened. 
Seymour  v.  Union  Stock  Yards  Co.,  224  111.  579,  585;  Cole  v.  German 
Savings  &  Loan  Soc,  59  C.  C.  A.  593,  124  Fed.  113;  Terminal  R.  R. 
Assn.  V.  Larkins,  112  111.  App.  366. 

Counsel  for  plaintiff  rely  upon  Siegel,  Cooper  &  Co.  v.  Trcka,  218 
111.  559.  The  doctrine  of  that  case  is  (p.  562-3),  that,  if  a  defendant  is 
guilty  of  negligence,  which  negligence  is  an  element  in  the  proximate 
cause  of  the  injury,  then  it  makes  no  difference,  as  to  liability,  that 
some  act  or  agency  of  some  other  person  or  thing  also  contributes  to 
bring  about  the  result  for  which  damages  are  claimed.  There  are  two 
distinctions  between  that  case  and  the  case  at  bar.  According  to  the 
expressions  in  the  opinion  in  that  case  the  court  was  considering  a  case, 
where,  in  point  of  fact,  two  contributing  acts  of  negligence  constituted 
the  proximate  cause.  Here,  in  point  of  fact,  we  find  in  the  act  of  Pio- 
trowski,  alone,  the  efficient  and  direct  proximate  cause.  Another  dis- 
tinction is  that  in  that  case,  as  appears  from  the  language  of  the  opin- 
ion, the  two  parties  who  occasioned  the  injury  were  both  guilty  of 
mere  negligence,  while  in  the  case  at  bar  the  party  we,  so  far  as  this 
case  is  concerned,  consider  responsible  for  the  happening  and  whose 
act  was  the  proximate  cause,  was  guilty  of  a  wilful  act  of  violence 
which,  as  shown,  preceded  the  city's  mere  negligence  as  a  proximate 
cause. 

For  reason  indicated  the  judgment  of  the  Superior  Court  must  be 
reversed  without  remanding. 

Reversed} 

Mr.  Justice  Baker  dissenting. 

^  See  also  Loftus  v.  Dehail,  133  Cal.  214,  65  Pac.  379;  Alexander  v.  New  Castle, 
115  Ind.  51. —Ed. 


218  DEXXV  ;•.   NEW  YORK  CENTRAL  RAILROAD  CO.      [cHAP.    III. 

DENNY   V.    NEW   YORK   CENTRAL   RAILOAD   CO. 
SupRKME  Judicial  Court  of  Massachusetts,   1859. 

[;j  Graij,  48L] 

Merrick,  J.  This  action  is  brought  to  recover  compensation  for 
damages  alleged  to  have  been  sustained  l)}-  the  plaintiff  in  consequence 
of  an  injury  to  a  quantit}'  of  his  wool  delivered  to  the  defendanls  to  be 
transported  for  him  IVom  Suspension  Bridge  to  Albany.  It  appears 
from  the  report  that  the  wool,  directed  to  Boston,  was  received  by  them 
at  the  former,  and  carried  to  the  latter  place,  and  was  there  safely  de- 
posited in  their  freight  depot.  But  it  was  not  transported  seasonably 
nor  with  leasonable  dispatch.  By  their  failure  to  exercise  the  degree 
of  care  and  diligence  required  of  them  by  law,  it  was  detained  six  davs 
at  Syracuse,  and  consequently  arrived  at  Albany  so  many  days  later 
than  it  should  regularly  have  been  there.  Whilst  it  was  lying  in  the 
defendant's  freight  de[)ot  in  that  city,  it  was  submerged  b}'  a  sudden 
and  violent  flood  in  tiie  Hudson  River.  This  rise  of  the  water  caused 
the  alleged  injury  to  the  wool. 

Upon  the  evidence  adduced  by  the  parties  at  the  ti'ial,  three  ques- 
tions of  fact  were  submitted  to  the  determination  of  the  jury.  It  is 
necessary  now  to  advert  only  to  the  first  of  those  questions ;  for  tlie 
finding  of  the  jury  in  relation  to  the  second  was  in  favor  of  the  defend- 
ants, and  the  verdict  in  relation  to  the  third  has  on  their  motion  been 
already  set  aside  as  having  been  reirdered  against  the  weight  of  evidence 
in  the  case. 

In  looking  at  the  terras  and  language  in  which  the  action  of  the  jury 
in  reference  to  the  first  of  these  questions  is  expressed,  it  would  perhaps, 
at  first  sight,  seem  that  they  had  passed  upon  and  determined  the  pre- 
cise point  in  issue  between  the  parties,  namel}',  whether  the  wool  was 
injured  b}'  reason  of  an  omission  on  the  part  of  the  defendants  to  exer- 
cise the  care  an<l  diligence  in  the  trans{)ortation  of  the  wool,  which  the 
law  required  of  them  as  common  carriers.  If  this  were  so,  it  would 
have  been  a  final  and  conclusive  determination.  But  upon  a  closer 
scrutiny  of  the  statements  in  the  report,  it  appears  that  the  jury,  by 
their  answer  to  the  question  submitted  to  them,  intended  onl}'  to 
attirm,  that  the  defendants  failed  to  exercise  due  care  and  diligence 
in  the  prompt  and  seasonable  transportation  of  the  wool,  and  that  by 
reason  of  this  failure  and  the  consequent  detention  of  the  wool  at  Syra- 
cuse it  was  injured  by  the  rise  of  water  in  the  Hudson,  and  thereby  sus- 
tained damage  to  which  it  would  not  have  been  exposed  if  it  had  arrived 
at  Albau}-  as  soon  as  it  should  have  done,  l)ecause  in  that  event  it  would 
have  been  taken  awa}'  from  the  defendants'  freight  depot,  and  carried 
forward  to  Boston  before  the  occurrence  of  the  flood.  And  it  was  upon 
this  ground  that  the  verdict  was  rendered  for  the  plaintiff.  This  was 
so  considered  by  both  parties  in  their  arguments  upon  the  questions  of 
law  arising  upon  the  report. 


SECT.    III.]      DENNY  I'.  NEW  YORK  CENTRAL  RAILROAD  CO.  219 

It  is  therefore  now  to  be  determined  b}-  the  court,  whether  the  defend- 
ants are,  b}'  reason  and  in  consequence  of  their  negligence  in  the  prompt 
and  seasonable  transportation  of  the  wool,  responsible  for  the  injury 
which  it  sustained  after  it  was  safely  deposited  in  their  depot  at  All)any. 
And  we  think  it  is  very  plain  that,  upon  the  well  settled  principles  of 
law  applicable  to  the  subject,  they  are  not. 

It  is  said  to  be  an  ancient  and  universal  rule  resting  upon  obvious 
reason  and  justice,  that  a  wrongdoer  shall  be  held  responsible  only 
for  the  proximate  and  not  for  the  remote  consequences  of  his  actions. 
2  Parsons  on  Con.  456.  The  rule  is  not  limited  to  cases  in  which  special 
damages  arise  ;  but  is  ai)plicable  to  every  case  in  which  damage  results 
from  a  contract  violated  or  an  injurious  act  committed.  2  Greenl.  P^v. 
§  256.  2  Parsons  on  Con.  457.  And  the  liabilities  of  common  carriers, 
like  persons  in  other  occupations  and  pursuits,  are  regulated  and  gov- 
erned by  it.  Story  on  Bailments,  580.  Angell  on  Carriers,  201. 
Morrison  v.  Davis,  20  Penn.  State  R.  171. 

In  the  last  named  case,  it  is  said  that  there  is  nothing  in  the  policy 
of  the  law  relating  to  common  carriers,  that  calls  for  any  different  rule, 
as  to  consequential  damages,  to  be  applied  to  them.  In  that  case  may 
be  found  not  only  a  clear  and  satisfactory  statement  of  the  law  upon  the 
subject,  but  a  significant  illustration  of  the  rule  wliich  the  decision  rec- 
ognizes and  affirms.  It  was  an  action  against  the  defendants,  as  com- 
mon carriers  upon  the  Pennsylvania  JCanal.  It  appeared  that  their  canal 
boat,  in  which  the  plaintifi''s  goods  were  carried,  was  wrecked  below 
Piper's  Dam,  by  reason  of  an  extraordinary  flood  ;  that  the  boat  started 
on  its  voyage  with  a  lame  horse,  and  by  reason  thereof  great  deUi}'  was 
occasioned  in  the  transi)ortation  of  the  goods  ;  and  that,  had  it  not  been 
for  this,  the  boat  would  have  passed  the  point  where  the  accident  occurred, 
before  the  flood  came,  and  would  have  arrived  in  time  and  safety  at  its 
destination.  The  plaintiff  insisted  that,  inasmuch  as  the  negligence  of 
the  defendants  in  using  a  lame  horse  for  the  voyage  occasioned  the  loss, 
the}'  were  therefore  liable  for  it.  But  the  court,  assuming  that  the  flood 
was  the  proximate  cause  of  the  disaster,  held,  that  the  lameness  of  the 
horse,  by  reason  of  which  the  boat,  in  consequence  of  his  inability 
tiierebv  to  carry  it  forward  with  the  usual  and  ordinary  speed,  was  ex- 
posed to  the  influence  and  dangers  of  the  flood,  was  too  remote  to  make 
the  defendants  responsible  for  the  goods  which  were  lost  in  the  wreck. 
It  was  onh',  in  connection  with  other  incidents,  a  cause  of  the  final,  direct 
and  proximate  cause  by  which  the  damages  sought  to  be  recovered  were 
immediately  occasioned. 

There  is  so  great  a  resemblance  between  the  circumstances  upon 
which  the  determination  in  that  case  was  made,  and  those  upon  which 
the  question  under  consideration  in  this  arises,  that  the  decision  in  both 
ought  to  be  the  same.  In  this  case,  the  defendants  failed  to  exercise 
due  care  and  diligence,  in  not  being  possessed  of  a  sufficient  number 
of  efficient  working  engines  to  transport  the  [)laiiitiff's  wool  with  the 
usual,  ordinary  and  reasonable  speed.     The  consequence  of  this  fail- 


220  FOX  V.  BOSTON  &  MAINE  IL\ILRO.U)  CO.       [CHAP.    III. 

ure  on  their  part  was  that  the  wool  was  detained  six  days  at  Syracnse. 
This  was  the  full  and  entire  effect  of  their  negligence,  and  for  this  they 
are  clearly  responsible.  But  in  all  that  occurred  afterwards  there  was 
no  failure  in  the  performance  of  their  dut}'.  There  was  no  dela}'  and 
no  negligence  in  any  part  of  the  transportation  between  Syracuse 
and  Albau}-,  and  upon  reaching  the  latter  place  the  wool  was  safely  and 
properly  stoijed  in  their  freight  depot.  It  was  their  dut}'  to  make  this 
disposition  of  it.  They  had  then  reached  the  terminus  of  their  road  ; 
the  carriage  of  the  goods  was  then  complete  ;  and  the  dut}'  onl}'  re- 
mained of  making  deliver}'.  The  deposit  of  the  wool  in  the  depot  was 
tlie  only  delivery  which  they  were  required  to  make  ;  and  having  made 
that,  their  Hal)ilities  as  carriers  thenceforward  ceased.  It  was  there  to 
be  received  by  the  owner,  or  taken  up  by  the  proprietors  of  the  railroad 
next  in  course  of  the  route  to  Boston.  Norwa\-  Plains  Co.  v.  Boston  & 
Maine  Railroad,  1  Gr.iy,  263.  Nutting  v.  Connecticut  River  Railroad, 
1  Gray,  502.  The  rise  of  waters  in  the  Hudson,  which  did  the  mischief 
to  the  wool,  occurred  at  a  period  subsequent  to  this,  and  consequently 
was  the  direct  and  proximate  cause  to  which  that  mischief  is  to  be  at- 
tributed. The  negligence  of  the  defendants  was  remote ;  it  had  ceased 
to  operate  as  an  active,  efficient  and  prevailing  cause  as  soon  as  the 
wool  had  been  carried  on  beyond  Syracuse,  and  cannot  therefore  sub- 
ject them  to  responsibility  for  an  injury  to  the  plaintiff's  propert}-,  re- 
sulting from  a  subsequent  inevitable  accident  which  was  the  proximate 
cause  bv  which  it  was  produced.  It  is  to  the  latter  only  to  which  the 
loss  sustained  by  him  is  attributable. 

It  follows  from  these  considerations,  that  the  verdict  in  the  plaintiff's 
behalf  must  be  set  aside,  and  a  new  trial  be  had  ;  in  which  he  will  re- 
cover such  damages  as  he  proves  were  the  direct  consequence  of  the 
negligence  of  which  the  defendants  may  be  shown  to  have  been  guilty. 

^ew  trial  ordered. 


FOX    V.    BOSTON   AND   MAINE    RAILROAD   CO. 
Supreme  Judicial  Court  of  Massachusetts,  1889. 

[148  Mass.  220.] 

Morton,  C.  J.  The  plaintiff  offered  to  prove  that  on  February  22, 
1881,  he  made  a  special  contract  with  the  defendant,  by  the  terms  of 
which  it  was  to  transport  a  car-load  of  apples  from  Haverhill  to  Port- 
laud,  and  deliver  it  to  the  Maine  Central  Railroad,  a  connecting  rail- 
road, in  time  to  be  transported  by  the  latter  corporation  to  Bangor  by 
a  freight  train  which  left  Portland  early  in  tlie  morning  of  February 
23  ;  that  the  weatlier  was  mild  on  the  2 2d  and  23d  days  of  February, 
ami  that  "  the  agreement  with  the  defendaii't  was  made  with  reference 
to  the  mildness  of  the  weather,  and  the  importance  of  having  the 
apples  delivered  to  the  Maine  Central  Railroad  at  the  agreed  time"; 
that  the  defendant  negligently  delayed  to  deliver  the  apples  at  the  time 


SECT.    III.]  FOX   V.    BOSTON  &  MAINE  RAILROAD  CO.  221 

agreed,  and  by  reason  of  this  negligence  they  "were  caught  in  cold 
weather  in  course  of  transportation  from  Portland  to  Bangor,  arriving 
at  the  latter  place  in  a  frozen  condition."  The  presiding  judge  ruled 
that,  "if  the  market  value  of  the  apples  when  they  reached  Portland 
was  only  diminished  in  the  respect  that  a  liability  of  being  frozen 
during  tlie  course  of  the  transportation  by  the  Maine  Central  Railroad 
was  incurred  or  increased  by  reason  of  the  negligent  delay  of  the  de- 
fendant in  the  transportation  from  Haverhill  to  Portland,  the  plaintiff 
cannot  recover  in  this  action  for  that  diminution  in  market  value."  If 
we  understand  this  ruling,  its  effect  was  to  restrict  tlie  plaintiff's  right 
to  recover  to  the  diminution  in  the  market  value  of  the  apples  at  Port- 
land caused  by  the  delay,  and  to  prevent  his  recovering  anything  for 
the  damage  to  the  apples  by  freezing  in  the  transportation  from  Port- 
land to  Bangor. 

The  general  rule  is,  that  where  goods  are  delivered  in  the  usual  way 
to  a  carrier  for  transportation,  and  there  is  a  negligent  delay  in  de- 
livering them,  the  measure  of  damage  is  the  diminution  in  the  market 
value  of  the  goods  between  the  time  when  they  ought  to  have  been  de- 
livered and  the  time  when  they  were  in  fact  delivered.  Ingledew  v.  North- 
ern Railroad,  7  Gray,  86.  Cutting  i\  Grand  Trunk  Railway,  13  Allen, 
381.  Scott  V.  Boston  &  New  Orleans  Steamship  Co.,  106  Mass.  468. 
Harvey  v.  Connecticut  &  Passumpsic  Rivers  Railroad,  124  Mass.  421. 
These  cases  are  put  upon  the  ground  that  the  duty  of  the  carrier  is  the 
measure  of  his  liabilit}' ;  that  his  duty  is  to  carry  the  goods  to  the  end 
of  his  line,  and  that  any  future  risks  to  which  the  goods  may  be  ex- 
posed are  not  within  the  contemplation  of  the  parties  or  the  scope  of 
their  contract.  But  we  think  a  different  rule  prevails  where  the  parties 
make  a  special  contract,  which  provides  for  certain  risks  to  which  the 
goods  are  exposed  on  the  connecting  line. 

Thus,  in  the  case  before  us,  the  parties  made  a  special  contract,  by 
which  the  defendant  agreed  to  deliver  the  apples  to  the  jMaine  Central 
Railroad  by  a  fixed  time,  so  that  they  would  arrive  in  Bangor  in  the 
afternoon  of  February  23.  Both  parties  knew  that  the  apples  were 
not  to  be  sold  in  Portland,  but  were  to  be  forwarded  to  Bangor,  and 
the  special  contract  was  made  for  the  purpose  of  avoiding  the  danger 
of  the  apples  freezing  on  the  connecting  line.  This  risk  was  antici- 
pated and  contemplated  by  tlie  parties,  and  if  the  danger  which  it  was 
intended  to  provide  against  was  incurred  by  reason  of  the  negligent 
failure  of  the  defendant  to  perform  its  contract,  it  ought  to  be  respon- 
sible in  damages.  The  damages  are  not  too  remote.  If  the  freezing 
had  occurred  on  the  defendant's  line,  it  cannot  be  doubted  that  the 
law  would  regard  the  delay  as  the  proximate  cause  of  the  damage ;  it 
is  none  the  less  so,  because  it  happened  on  a  connecting  line.  The 
damage  was  not  caused  by  any  extraordinary  event  subsequently 
occurring,  but  was  caused  by  an  event  which  was,  according  to  the 
common  experience,  naturally  and  reasonably  to  be  expected,  a  change 
of  temperature, 


222    GREEN-WHEELER  SHOE  CO.  V.  CHICAGO,  ETC.,  RY.  CO.    [CHAP.  III. 

The  case  is  thus  distinguished  from  the  cases  of  Denny  v.  New 
York  Central  Railroad,  13  Gray,  481,  and  Hoadley  r.  Northern 
Transportation  Co.,  115  Mass.  304.  In  each  of  these  cases,  the  loss  to 
the  plaintiff  was  caused  by  an  extraordinary  event,  a  fire  and  a 
freshet ;  and  the  court  held  that  the  defendants,  although  guilty  of 
negligent  delay,  were  not  responsible,  because  the  event  was  not  one 
which  would  reasonably  be  anticipated.  In  the  case  at  bar,  the  event 
which  caused  the  loss  was  contemplated  by  the  parties  when  they  made 
their  contract  as  a  probable  consequence  of  the  breach  of  it. 

The  case  before  us  is  distinguishable  from  Ingledew  r.  Northern 
Railroad,  7  Gray,  86.  In  that  case  the  opinion  is  based  upon  the 
ground,  that  it  did  not  appear  that  "  the  defendants  assumed  any  duty 
in  relation  to  the  delivery  of  the  boxes  to  another  carrier,"  or  that  they 
"  were  charged  with  any  duty  in  forwarding  the  ink  to  Keene,  or  that 
the  officers  of  the  defendant  corporation  knew  of  its  destination  beyond 
their  own  line."  The  facts  of  the  two  cases  are  difl'erent.  and  for  the 
reasons  above  stated  we  are  of  opinion  that  different  rules  cf  damages 
are  to  be  applied  in  them,  and  that  in  the  case  at  bar,  upon  the  facts 
which  he  offered  to  prove,  the  plaintiff  is  entitled  to  recover  the  damage 
which  he  sustained  by  reason  of  the  freezing  of  the  apples  between 
Portland  and  Bangor.  Exceptions  sustained. 


GREEN-WHEELER   SHOE    CO.  v.  CHICAGO,    ROCK   ISLAND 
AND    PACIFIC    RAILAN  AY    CO. 

Supreme  Couitx  of  Iowa,   1906. 

[130  la.  123.] 

McClaix,  C.  J.  In  the  agreed  statement  on  which  the  case  was 
tried  without  other  evidence  being  introduced  it  is  stipulated  that  the 
defendant  was  guilty  of  negligent  delay  in  the  forwarding  of  the  goods 
of  plaintiff  from  P't.  Dodge  to  Kansas  City,  where  they  were  lost  or 
injured  on  May  30,  1903,  by  a  flood  which  was  so  unusual  and  extra- 
ordinary as  to  constitute  an  act  of  God.  and  that  if  there  had  been  no 
such  negligent  delay  the  goods  would  not  have  been  caught  in  the  flood 
referred  to  or  damaged  thereby. 

We  have  presented  for  our  consideration,  therefore,  the  simple  ques- 
tion whether  a  carrier  who  by  a  negligent  delay  in  transporting  goods 
has  subjected  them,  in  the  course  of  transportation,  to  a  peril  which 
has  caused  their  damage  or  destruction,  and  for  the  consequence  of 
which  the  carrier  would  not  have  been  liable  had  there  been  no  negli- 
gent delay  Intervening,  is  liable  for  the  loss. 

On  this  question  there  is  a  well-recognized  conflict  in  the  authorities. 
In  several  well-considered  cases  decided  by  courts  of  high  authority  it 
was  decided,  while  the  question  was  still  new,  that  the  negligent  delay 
of  the  carrier  in  transportation  could  not  be  regarded  as  tlie  proximate 


SECT.  III.]     GREEN-WHEELER  SHOE  CO.  V.  CHICAGO,  ETC.,  RY.  CO.     223 

cause  of  an  ultimate  loss  by  a  casualty  which  in  itself  constituted  an 
act  of  God,  as  that  term  is  used  in  defining  the  carrier's  exemption 
from  liability,  although  had  the  goods  been  transported  with  reasonable 
diligence  they  would  not  have  been  subjected  to  such  casualty,  and 
these  cases  are  very  similar  to  the  one  before  us  inasmuch  as  the  loss 
in  each  instance  was  due  to  the  goods  being  overtaken  by  an  unprece- 
dented flood  for  the  consequence  of  which  the  carrier  would  not  be 
responsible.  Morrison  v.  Davis,  20  Pa.  171  (57  Am.  Dec.  695); 
Denny  v.  New  York  Cent.  R.  Co.,  13  Gray  (Mass.),  481  (74  Am.  Dec. 
i)45)  ;  Railroad  Co.  v.  Reeves,  10  Wall.  176  (19  L.  Ed.  909);  Daniels 
r.  Ballantine,  'IS  Ohio  St.  532  (13  Am,  Rep.  264) ;  Hunt  v.  Missouri, 
K.  &  T.  R.  Co.  (Tex.  Civ.  App.),  74  S.  W.  69;  Gleesoii  r.  Virginia 
Midland  R.  Co.,  5  Mackey  (D.  C),  356.  These  cases  are  predicated 
upon  the  view  that  if  the  carrier  could  not  reasonably  have  foreseen  or 
anticipated  that  the  goods  would  be  overtaken  by  such  a  casualty  as 
a  natural  and  probable  result  of  the  delay,  then  the  negligent  delay  was 
not  the  proximate  cause  of  the  loss,  and  should  be  disregarded  in 
determining  the  liability  for  such  loss.  A  similar  course  of  reasoning 
has  been  applied  in  other  cases,  where  the  loss  has  been  due  immedi- 
ately to  some  cause  such  as  accidental  fire  involving  no  negligence  on 
the  part  of  the  carriei  and  within  a  valid  exception  in  the  bill  of  lading, 
but  the  goods  have  been  brought  within  the  peril  stipulated  against  by 
negligent  delay  in  transportation.  Hoadley  v.  Northern  Trans.  Co., 
115  Mass.  304  (15  Am.  Rep.  106)  ;  Yazoo  &  M.  V.  R.  Co.  v.  Millsaps, 
76  Miss.  855  (25  South.  672,  71  Am.  St.  Rep.  543);  General  Fire 
Extinguisher  Co.  v.  Carolina  &  N.  W.  R.  Co.,  137  N.  C.  278  (47  S. 
E.  208).  For  similar  reasons  it  has  been  held  that  loss  of  ^r  injury  to 
the  goods  by  reason  of  their  inherent  nature,  as  by  freezing  or  the 
like,  will  not  render  the  carrier  liable,  even  after  negligent  delay  in 
transportation,  if  such  casualty  could  not  have  been  foreseen  or  antici- 
pated as  the  natural  and  probable  consequence  of  such  delay.  Michi- 
gan Cent.  R.  Co.  v.  Burrows,  33  Mich.  6  ;  Herring  v.  Chesapeake  & 
W.  R.  Co.,  101  Va.  778  (45  S.  E.  322). 

On  the  other  hand,  it  was  held  by  the  Court  of  Appeals  of  New 
Y'ork  in  a  case  arising  out  of  the  same  flood  which  caused  the  destruc- 
tion of  the  goods  involved  in  Denny  /•.  New  York  Cent.  R.  Co.,  13 
Gray  (Mass.),  481  (74  Am.  Dec.  645),  srtprc,  that  the  preceding 
negligent  delay  on  the  part  of  the  carrier,  in  consequence  of  which  the 
goods  were  overtaken  by  the  flood,  was  sutficient  ground  fo-r  holding 
the  carrier  to  be  liable  for  the  loss.  Michaels  r.  New  York  Cent.  R. 
Co.,  30  N.  Y.  564  (86  Am.  Dec.  415);  Read  r.  Spaulding,  30  N.  Y. 
630  (86  Am.  Dec.  426).  And  the  same  court  has  adhered  to  this  view 
in  case  of  a  loss  by  fire  covered  by  valid  exception  in  the  bill  of  lad- 
ing. Condict  V.  Grand  Trunk  R.  Co.,  54  N.  Y.  500.  The  Illinois 
Supreme  Court  has  consistently  followed  tlie  rule  of  the  New  York 
cases  in  holding  that  negligent  delay  subjecting  the  goods  to  loss  by 
the  Johnstown  flood  rendered  the  carrier  liable  (Wald  o.  Pittsburg, 


224    GREEN-WHEELER  SHOE  CO.  V.  CHICAGO,  ETC.,  RY.  CO.    [CHAP.  III. 

C,  C.  &  St.  L.  R.  Co.,  162  111.  545,  44  N.  E.  888,  35  L.  R.  A.  356, 
53  Am.  St.  Rep.  332)  and  likewise  that  similar  delay  rendered  the 
carrier  liable  for  damage  to  the  goods  by  freezing.  Michigan  Cent.  R. 
Co.  V.  Curtis,  80  111.  324.  The  Alabama  and  Kentucky  courts  have 
held  that  a  destruction  by  fire  within  a  valid  exception  in  the  bill  of 
lading  would  not  excuse  the  carrier  if  by  negligent  delay  in  transpor- 
tation the  goods  had  been  subjected  to  such  casualty.  Louisville  & 
N.  R.  Co.-/-.  Gidley,  119  Ala.  523  (24  South.  753);  Herusheim  v. 
Newport  News  &  M.  V.  Co.,  18  Ky.  Law  Rep.  227  (35  S.  W.  1115). 
In  Missouri  the  Supreme  Court  has  followed  or  approved  of  what  may 
be  designated  as  the  New  York  rule,  under  a  variety  of  circumstances. 
Davis  V.  Wabash,  St.  L.  &  P.  R.  Co.,  89  Mo.  340  (1  S.  W. 
327);  Pruitt  r.  Hannibal  &  St.  J.  R  Co.,  62  Mo.  527;  Read  r. 
St.  Louis,  K.  C.  &  N,  R.  Co.,  60  Mo.  199.  And  the  St.  Louis 
Court  of  Appeals  in  that  State  has  applied  the  same  rule  in  case  of  a 
loss  by  freezing.  Armentrout  /'.  St.  Louis,  K.  C.  &  N.  R.  Co.,  1  Mo. 
App.  158.  But  the  Kansas  City  Court  of  Appeals  in  a  case  of  loss  by 
flood  has  followed  the  Massachusetts  and  Pennsylvania  cases.  Moffatt 
Cora.  Co.  V.  Union  Pac.  R.  Co.  (Mo.  App.),  88  S.  W.  117.  And  the 
St.  Louis  Court  of  Appeals  seems  to  have  recently  recognized  the  same 
rule.  Grier  r.  St.  Louis  Merchants'  Bridge  Terminal  R.  Co.,  108  Mo. 
App.  565  (84  S.  W.  158).  In  West  Virginia  the  Supreme  Court  has 
held  that  negligent  delay  renders  the  carrier  liable  for  a  subsequent 
loss  by  freezing.  McGraw  v.  Baltimore  &  O.  R.  Co.,  18  W.  Va.  361 
(41  Am.  Rep.  696).  In  Minnesota  the  court  has  recently  reviewed 
the  whole  question  in  a  case  involving  the  loss  of  goods  by  the  same 
flood  which  caused  the  loss  for  which  the  present  suit  is  brought  and 
has  reached  the  conclusion  that  the  previous  negligent  delay  of  the 
carrier  which  caused  the  goods  to  be  subjected  to  the  peril  of  the  flood 
"  concurred  and  mingled  with  the  act  of  God"  to  such  an  extent  that 
the  carrier  was  precluded  from  relying  upon  the  act  of  God  as  a 
defence.  Bibb  Broom  Corn  Co.  v.  Atchinson,  T.  &  S.  F.  R.  Co., 
94  Minn.  269,  102  N.  W.  709  (69  L.  R.  A.  509). 

The  irreconcilable  conflict  in  the  authorities  is  recognized  by  text- 
writers,  and  while  the  weight  of  general  authority  has  in  many  cases 
been  said  to  support  the  rule  announced  in  the  Massachusetts  and 
Pennsylvania  cases  (1  Thompson,  Negligence,  section  74;  Schouler, 
Bailments  [Ed.  1905J,  section  348;  Hale,  Bailments  and  Carriers,  361 ; 
6  Cyc.  382;  notes  36  Am.  St.  Rep.  838),  other  authors  prefer  the 
New  York  rule  (Hutchinson,  Carriers  [2d  Ed.],  section  200;  Ray. 
Negligence  of  Imposed  Duties,  177).  In  the  absence  of  any  express 
declaration  of  this  court  on  the  very  point,  and  in  view  of  the  fact  that 
in  recent  cases  the  conflict  of  authority  is  still  recognized  (see  5  Cur. 
Law,  517)  it  seems  necessary  that  the  reasons  on  which  the  two  lines 
of  cases  are  supported  shall  be  considered  in  order  that  we  may  now 
reach  a  conclusion  which  shall  be  satisfactory  to  us. 

Mere  negligence  will  not  render  one  person  liable  to  another  for  a 


SECT.    III.]     GREEX-WHEELER  SHOE  CO.  V.  CHICAGO,  ETC.,  RY.  CO.   225 

loss  which  the  latter  would  not  have  sustained  had  there  been  no  such 
negligence,  unless  the  negligence  consists  in  some  violation  of  a  duty 
which  the  one  person  owes  to  the  other.  Dubuque  Wood  &  Coal 
Ass'n  V.  City  and  County  of  Dubuque,  30  Iowa,  176;  St.  Louis,  I.  M. 
&  S.  K  Co.  V.  Commercial  Ins.  Co.,  139  U.  S.  223  (11  Sup.  Ct.  554, 
35  L.  Ed.  154).  And,  on  the  other  hand,  it  is  well  settled  that  if  the 
negligence  of  one  person  with  reference  to  the  duty  owed  to  another 
concurs  with  an  accidental  cause  resulting  in  injury  to  another  to  whon: 
such  duty  is  owed  the  negligent  person  must  answer  for  the  conse- 
quences as  though  his  negligence  were  the  sole  cause  of  the  loss. 
Savannah,  F.  &  W.  E.  Co.  v.  Commercial  Guano  Co.,  103  Ga.  590 
(30  S.  E.  555);  Thomas  v.  Lancaster  Mills,  71  Fed.  481  (19  C.  C.  A. 
88)  ;  New  Brunswick  Steamboat  Co.  v.  Tiers,  24  N.  J.  Law,  697 
(64  Am.  Dec.  394)  ;  Tierney  v.  New  York  Cent.  &  H.  R.  E.  Co.,  76 
N.  Y.  305 ;  Williams  r.  Grant,  1  Conn.  487  (7  Am.  Dec.  235)  ;  1 
Thompson,  Negligence,  sections  68,  73. 

The  real  difficulty  seems  to  be  in  determining  to  what  extent,  if  at 
all,  it  is  necessary  that  the  negligent  party  must  liave  been  able  to 
foresee  and  anticipate  the  result  of  his  negligent  act  in  order  to  render 
him  liable  for  the  consequences  thereof  resulting  from  a  concurrence 
of  his  negligence  and  another  cause  for  which  he  is  not  responsible. 
In  an  action  on  contract  the  party  who  is  at  fault  is  only  liable  for 
such  consequences  as  arise  according  to  the  usual  course  of  things 
from  his  breach,  or  such  as  may  reasonably  be  supposed  to  have  been 
in  the  contemplation  of  both  parties  at  the  time  the  contract  was  made 
as  the  probable  result  of  the  breach.  Hadley  v.  Baxendale,  9  Exch. 
341  ;  Sedgwick,  Elements  of  Damage,  17.  But  in  au  action  for  tort, 
and  the  present  action  is  of  that  character,  recovery  is  not  limited  to 
the  consequences  within  the  contemplation  of  the  parties  or  either  of 
them,  but  includes  all  the  consequences  ' '  resulting  by  ordinary 
natural  sequence,  whether  foreseen  by  the  wrongdoer  or  not,  provided 
that  the  operation  of  the  cause  of  action  is  not  intei'rupted  by  the 
intervention  of  an  independent  agent  or  overpowering  force,  and  that 
but  for  the  operation  of  the  cause  of  action  the  consequence  would  not 
have  ensued."  Sedgwick,  Elements  of  Damage,  section  54.  It  is 
true  that  for  the  purpose  of  determining  whether  the  injury  suffered  by 
the  party  complaining  was  the  natural  and  probable  result  of  the 
wrong  complained  of  a  convenient  test  is  to  consider  whether  in  gen- 
eral such  a  result  might  have  been  foreseen  as  the  consequence  of  the 
wrong,  but  it  is  not  necessary  "  that  the  injury  in  the  precise  form  in 
which  it  in  fact  resulted  should  have  been  foreseen.  It  is  enough  that 
it  now  appears  to  have  been  the  natural  and  probable  consequence." 
Hill  V.  Winsor,  118  Mass.  251  ;  Schumaker  r.  St.  Paul  &  D.  R.  Co., 
46  Minn.  38  (48  N.  W.  559,  12  L.  R.  A.  257).  And  see  Railroad  Co. 
V.  Kellogg,  94  U.  S.  469  (24  L.  Ed.  256)  ;  McPeek  r.  Western  Union 
Tel.  Co.,  107  Iowa,  356;  Hoag  r.  Railroad  Co.,  85  Pa.  293  (27  Am. 
Rep.   653) ;  Empire  State  Cattle  Co.  v.  .Atchison,  T.  &  S.  F.  Ft.  Co. 


22G    GREEN-WHEELER  SHOE  CO.  ('.  CHICACxO,  ETC.,  RY.  CO.    [CHAP.  III. 

(C.  C),  135  Fed.  135  ;  Chicago,  St.  P.,  M.  &  O.  R.  Co.  v.  Elliott,  55 
Fed.  949  (5  C.  C.  A.  347,  20  L.  R.  A.  582)  ;  Miller  r.  St.  Louis,  I.  M. 
&  S.  R.  Co.,  90  Mo.  389  (2  S.  W.  439)  ;  Smith  v.  Railroad,  L.  R.  6 
C.  P.  21 ;   1  Thompson,   Negligence,  section  59, 

Now,  while  it  is  true  that  defendant  could  not  have  anticipated  this 
particular  flood  and  could  not  have  foreseen  that  its  negligent  delay  ia 
transportation  would  subject  the  goods  to  such  a  danger,  yet  it  is  now 
apparent  that  such  delay  did  j^ubject  the  goods  to  the  danger,  and  that 
but  for  the  delay  they  would  not  have  been  destroyed ;  and  defendant 
should  have  foreseen,  as  any  reasonable  person  could  foresee,  that  the 
negligent  delay  would  extend  the  time  during  which  the  goods  would 
be  liable  in  the  hands  of  the  carrier  to  be  overtaken  by  some  such 
casualty,  and  would  therefore  increase  the  peril  that  the  goods  should 
be  thus  lost  to  the  shipper.  This  consideration  that  the  peril  of  acci- 
dental destruction  is  enhanced  by  the  negligeut  extension  of  time  dur- 
ing which  the  goods  must  remain  in  the  carrier's  control  and  out  of  the 
control  of  the  owner,  and  during  which  some  casualty  may  overtake 
them,  has  not,  we  think,  been  given  sufficient  consideration  in  the  cases 
in  which  the  carrier  has  been  held  not  responsible  for  a  loss  for  which 
he  is  not  primarily  liable,  but  which  has  overtaken  the  goods  as  a  con- 
sequence of  the  preceding  delay  in  their  transportation. 

It  is  not  sufficient  for  the  carrier  to  say  by  way  of  excuse  that  while 
a  proper  and  diligent  transportation  of  the  goods  would  have  kept 
them  free  from  the  peril  by  which  they  were  in  fact  lost  it  might  have 
subjected  them  to  some  other  peril  just  as  great.  He  cannot  speculate 
on  mere  possibilities.  A  pertinent  illustration  is  furnished  by  the 
well-settled  rule  with  reference  to  deviation  which  is  that  if  the  carrier 
transports  the  goods  over  some  other  route  than  that  specified  in  the 
contract  or  reasonably  within  the  contemplation  of  the  parties,  he  must 
answer  for  any  loss  or  damage  occurring  during  such  deviation,  al- 
though it  is  from  a  cause  which  would  not  in  itself  render  him  liable. 
In  such  a  case  it  is  said  "  that  no  wrongdoer  can  be  allowed  to  appor- 
tion or  (jualify  his  own  wrong,  and  that  as  a  loss  has  actually  happened 
whilst  his  wrongful  act  was  in  operation  and  force,  and  which  is  attrib- 
utable to  his  wrongful  act,  he  cannot  set  up  as  an  answer  to  the 
action  the  bare  possibility  of  a  loss  if  his  wrongful  act  had  never  been 
done.  It  might  admit  of  a  different  construction  if  he  could  show,  not 
only  that  the  same  loss  might  have  happened,  but  that  it  must  have 
happened  if  the  act  complained  of  had  not  been  done."  Davis  v. 
Garrett,  6  Bing.  716.  And  see  Merchants'  D.  Transp.  Co.  v.  Kahn, 
76  111.  520;  Crosby  r.  Fitch,  12  Conn.  410  (31  Am.  Dec.  745);  U.  S, 
Exp.  Co.  V.  Kountze,  8  Wall.  342  (19  L.  Ed.  457,  6  Cyc.  383).  It  ife 
true  that  the  analogy  to  the  case  of  a  deviation  is  denied  by  the  courts 
■vhich  ann(junce  the  rule  of  the  Pennsylvania  and  Massachusetts  cases 
but  the  distinction  attempted  to  be  made  that  a  deviation  amounts  to 
a  conversion  rendering  the  carrier  absolutely  liable  is  too  technical  to 
be  considered  as  persuasive.     The  analogy  between  the  two  classes  of 


J 


SECT.    III.]   GREEN-TSTIEELER  SHOE  CO.  V.  CHICAGO,  ETC.,  RY,  CO.     227 

cases  has  been  recognized  in  Constable  r.  National  Steamship  Co., 
15*  U.  S.  51  (14  Slip.  Ct.  1062,  38  L.  Ed.  903),  and  in  Hutchinson, 
Carriers  (2d  Ed.),  section  200. 

This  court  has  expressed  itself  in  favor  of  the  liability  of  the  carrier 
in  classes  of  cases  very  analogous  to  that  of  deviation.  AVhere  goods 
were  shipped  with  the  agreement  that  they  should  be  carried  to  their 
destination  without  change  of  cars,  and  in  violation  of  this  contract  the 
goods  were  unloaded  at  Chicago  which  was  not  their  destination,  for 
the  purpose  of  transporting  them  in  other  cars,  and  they  were  destroyed 
by  the  Chicago  fire,  it  was  held  that  the  carriers  were  liable  although 
the  loss  by  fire  was  within  a  valid  exemption  from  liability  contained 
in  the  bill  of  lading,  llobinson  v.  Merchants'  Dispatch  Trans.  Co., 
45  Iowa,  470;  Stewart  v.  Merchants'  Dispatch  Trans.  Co.,  47  Iowa, 
229.  Certainly  the  act  of  the  carrier  in  unloading  the  goods  at  Chicago, 
instead  of  carrying  them  through  to  their  destination  in  the  cars  in 
which  they  were  originally  loaded,  would  not  amount  even  to  a  techni- 
cal conversion,  nor  could  it  have  been  anticipated  that  the  result  of 
such  an  act  would  be  the  destruction  of  the  goods  ;  nevertheless  this 
court  reached  the  conclusion  that  such  a  departure  from  the  terms  of 
the  contract  rendered  the  carrier  liable  for  a  less  for  which  it  would 
not  have  been  liable  had  it  resulted  without  such  departure.  We  think 
that  in  principle  these  cases  support  the  general  proposition  that  the 
wrongful  act  of  the  carrier  which  in  fact  subjects  the  goods  to  loss 
renders  him  liable  for  such  loss  although  the  circumstances  under 
which  it  occurred  could  not  have  been  anticipated.  This  is  plainly 
right,  for  the  detention  due  to  the  transfer  of  the  goods  to  the  other 
cars  did  increase  the  hazard  of  fire;  but  it  is  equally  true  in  the  case 
before  us  that  the  negligent  delay  increased  the  hazard  of  the  loss  by 
flood.  As  supporting  the  same  view  we  may  also  refer  to  Hewett  v. 
Chicago,  B.  &  Q.  R.  Co.,  Go  Iowa,  611,  in  which  it  was  held  that 
negligent  delay  in  forwarding  goods  which  were  liable  to  damage  by 
freezing  rendered  the  carrier  accountable  for  the  loss  thus  resulting. 
In  that  case  it  is  said  that  while  the  carrier  is  responsible  for  such 
damages  only  as  are  the  proximate  consequence  of  his  own  acts  and 
is  not  accountable  for  such  loss  as  is  occasioned  by  the  intervention 
of  the  vis  m(fjor,  yet  "  one  of  the  undertakings  of  the  common  carrier 
is  that  he  will  not  expose  the  property  entrusted  to  his  care  to  any 
improper  hazards  or  extraordinary  perils,  and  if,  by  his  act  or  omis- 
sion, it  is  exposed  to  perils  or  hazards  which  ordinary  foresight  could 
have  apprehended  and  provifled  against,  he  is  accountable  for  such 
injury  as  may  be  occasioned  by  such  exposure."  See,  also,  Whicher 
V.  Steam  Boat  Ewing,  21  Iowa,  240. 

We  are  satisfied  that  the  sounder  reasons,  supported  by  good  au- 
thority, require  us  to  hold  tliat  in  this  ciise  the  carrier  is  liable  for  the 
loss  of  and  damage  to  plaintiff's  goods,  and  the  judgment  of  the  trial 
court  is  therefore  rerersed. 


228  BURROWS   V.    MARCH   GAS   CO.  [cHAP.    III. 


SECTION  IV. 

Cases  for  Analysis. 

BURROWS  V.  MARCH  GAS  CO. 

Court  of  Exchequer,  1870. 
[Reported  L.  R.  5  Ex.  67.] 

Kelly,  C.  B.  I  am  of  opinion  that  this  rule  ought  to  be  discharged. 
The  action  has  been  said  to  be  one  of  contract,  but  in  point  of  fact  the 
statement  of  the  contract  in  the  declaration  seems  to  me  to  be  made 
by  way  of  inducement  only,  and  the  substantial  complaint  is  rather  of 
a  tort  than  of  a  breach  of  contract.  The  contract  was  that  the  defend- 
ants should  supply  the  plaintiff  with  a  gas  pipe  from  the  main  to  a 
meter  under  the  plaintiff's  staircase,  and  the  mischief  for  which  damages 
are  sought  to  be  recovered  arose  .thus : —  The  pipe  having  been  laid 
down  required  testing,  and  in  order  to  test  it,  gas  was  laid  on  and  the 
pipe  was  filled.  This  was  done  without  any  notice  to  Bates,  the  gas- 
fitter.  The  defendants  sent  no  one  to  test  the  pipe,  but  on  the  night  of 
the  accident,  one  Sharratt,  the  servant  of  Bates,  was  told  there  was  an 
escape  of  gas.  On  hearing  this,  he  went,  not  for  the  purpose  of  test- 
ing the  defendants'  pipe  but  of  examining  Bates's  work,  and  of  attempt- 
ing to  discover  the  cause  of  the  escape,  into  the  plaintiff's  shop  with  a 
lighted  candle,  and  an  explosion  ensued,  doing  the  damage  for  which 
the  plaintiff  now  seeks  to  render  the  defendants  liable.  Now,  it  is 
clear  that  the  injury  was  not  caused  entirely  by  the  mere  act  of  the 
defendants  in  furnishing  an  insufficient  pipe.  But  the  gas  having  es- 
caped by  reason  of  that  insufficiency,  was  exploded  in  consequence 
of  the  lighted  candle  being  brought  in  contact  with  it,  and  thus  from 
the  two  causes  conjointly,  the  defect  in  the  defendants'  pipe  and  the 
imprudence  of  Sharratt,  in  introducing  a  lighted  candle  into  the  shop, 
the  accident  happened.  Under  these  circumstances,  if  Sharratt  had 
been  a  servant  of  the  plaintiff  there  would  have  been  contributory 
negligence.  Here,  however,  he  was  the  servant  of  Bates,  the  gasfitter, 
and  unless  Bates  is,  for  this  purpose,  identical  with  the  plaintiff,  this 
is  not  a  case  in  which  the  plaintiff  contributed  to  the  accident,  for  the 
owner  of  premises  cannot  be  held  liable  for  the  negligence  of  inde- 
pendent tradesmen.  Neither  can  he  be  disentitled  to  recover  because 
their  joint  negligence  concurs  to  cause  an  injury;  otherwise,  if  a  num- 
ber of  independent  tradesmen  were  employed  on  his  premises  in  various 


SECT.  TV.]    LORDS  BAILIFF-JURATS  V.  CORP'x  OF  TRINITY  HOUSE.      229 

capacities,  and  fpr  different  purpcses,  the  result  might  be  that  he  would 
find  himself  without  a  remedy  against  any  for  an  injury  arising  from 
separate  acts  of  negligence  by  each.  Suppose,  for  instance,  carpenters 
and  bricklayers  happened  to  be  employed  at  the  same  time,  as  in  this 
case.  Bates  the  gasfitter,  and  the  defendants  the  gas  suppliers,  were  em- 
ployed, and  damage  arose  from  the  negligence  of  both.  The  carpen- 
ters might  shift  the  responsibility  on  to  the  bricklayers,  or  the  brick- 
layers on  to  the  carpenters,  and  thus  the  person  damnified  might  be 
left  without  a  remedy.  But  such  is  not  the  law.  If  a  man  sustain  an 
injury  from  the  separate  negligence  of  two  persons  employed  on  his 
premises  to  do  two  separate  things,  as  in  this  case  the  plaintiff  has  sus- 
tained an  injury  from  the  negligence  of  the  gasfitter's  servant  on  the 
one  hand  and  of  the  gas  company  on  the  other,  he  can,  in  my  opinion, 
maintain  an  action  against  both  or  either  of  the  wrongdoers.  Here  he 
has  thought  fit  to  sue  the  company,  and  on  the  facts  proved,  their  neg- 
ligence is  complete.  They  laid  down  an  unfit  and  improper  pipe; 
they  turned  on  the  gas  without  notice  to  the  gasfitter  of  their  intention ; 
they  took  no  precaution  by  proper  testing  or  otherwise  to  prevent  the 
gas  escaping.  Sharratt  did  not  go  to  test  their  work,  but  that  of  Bates. 
He  was  an  entire  stranger  to  the  defendants,  as  he  was  to  the  plaintiff 
also.  The  negligence  on  their  part,  therefore,  seems  to  me  complete. 
The  jury  found  that  the  escape  of  gas  came  from  a  defect  in  tne  pipe  sup- 
plied by  the  defendants,  and  that  that  defect  was  there  when  the  pipe 
was  supplied.  They  further  found,  though  not  directly  in  answer  to 
any  question  put  to  them,  that  the  defendants  ought  to  have  caused 
the  pipe  to  be  tested  by  some  competent  person.  The  negligence  on 
their  part,  accordingly,  is  clearly  established,  and  the  concurrent  act 
of  negligence  on  the  part  of  Sharratt,  who  was  a  stranger  alike  to  the 
plaintiff  and  the  defendants,  cannot  exonerate  them.  I  think,  there- 
fore, that  the  verdict  found  at  the  trial  was  right,  and  ought  to  be  sus- 
tained.-^ 


THE  LORDS  BAILIFF-JURATS  OF  ROMNEY  MARSH  v.  THE 
CORPORATION  OF  THE  TRINITY  HOUSE. 

Court  of  Exchequer,  1870. 

'      [Reported  L.   R.  5  Ex.  204.] 

Special  case  stated  in  an  action  for  negligence  tried  before  Cock- 
burn,  C.  J.,  at  Maidstone,  on  the  10th  of  March,  1869,  in  which  a  ver- 
dict was  found  for  the  plaintiffs  for  9.3/.,  subject  to  the  opinion  of  the 
Court  on  a  special  case. 

The  first  count  of  the  declaration  charged  the  defendants  with  unskil- 
ful and  negligent  navigation  of  their  ship  by  their  servants,  wherel^v  the 
same  was  wrecked,  and  ran  foul  of  and  injured  a  sea  wall  of  the  plaintiffs'.^ 

»  See  also  Merrill  v.  Los  Angeles  G.  &  E.  Co.,  1.58  Cal.  499,  111  Pac.  534;  Logansport 
&  W.  V.  G.  Co.  V.  Coate,  29  Ind.  App.  299,  64  N.  E.  638;  Koelsch  v.  Philadelphia 
Co.,  152  Pa.  355,  25  All.  522.  —  Ed. 

2  Only  so  much  of  the  case  as  discusses  this  count  is  given. —  Ed. 


230    LORDS  BAILIFF-JURATS  V.  CORp'n  OF  TRINITY  HOUSE.    [CHAP.  III. 

The  facts  stated  in  the  case  were  as  follows.  On  the  30th  of  Novem- 
ber, 1867,  the  defendants'  pilot  cutter  Queen,  througli  the  negligence 
of  her  captain  and  crew,  struck  upon  a  shoal  about  three-quarters  of 
a  mile  out  from  the  Dymchurch  wall,  a  sea  wall  owned  and  repaired  by 
the  plaintiffs.  It  was  then  blowing  hard,  and  there  was  a  flood  tide; 
and  in  consequence,  after  the  vessel  struck,  the  captain  and  crew  lost 
all  control  over  her,  and  she  gradually  drifted  towards  the  shore,  and  was 
at  last  driven  against  the  wall.  If  the  weather  had  been  moderate  and 
the  state  of  the  tide  different,  this  might  have  been  prevented,  but  in 
the  then  state  of  the  weather  and  tide  it  was  impossible  to  prevent  it. 
After  the  ship  struck  the  ground,  some  of  the  crew  escaped  in  a  boat, 
and  the  captain  and  the  rest  of  the  crew  were  rescued  from  the  cutter 
just  before  she  struck  the  wall. 

Kelly,  C.  B.  The  question  in  this  case  is,  whether  the  injury 
to  the  plaintiffs'  wall  was  so  caused  by  the  negligence  of  the  defendants 
as  to  make  the  defendants  liable  within  the  rule  of  law  applicable 
to  such  cases. 

The  defendants'  vessel,  by  the  negligence  of  the  captain  and  crew, 
grounded  upon  a  shoal  or  sand-bank  within  three-quarters  of  a  mile 
of  the  wall  of  the  plaintiff's',  the  immediate  effect  of  which  was  that 
the  vessel  became  unmanageable  and  beyond  the  control  of  the  crew; 
and  as  at  the  time  a  high  wind  was  blowing  and  the  tide  flowing  towards 
the  shore,  the  vessel  was  driven  and  carried  with  great  violence  against 
the  wall,  and  so  effected  the  injury  in  question. 

The  rule  of  law  is,  that  negligence  to  render  the  defendants  liable 
must  be  the  causa  causans,  or  the  proximate  cause  of  the  injury,  and 
not  merely  a  causa  sine  qua  non. 

I  think  that  it  was  so  in  the  present  case.  The  immediate  effect  of 
the  negligence  was  to  put  the  vessel  into  such  a  condition  that  it 
must  necessarily  and  inevitably  be  impelled  in  whatever  direction  the 
\vind  and  tide  were  giving  at  the  moment  to  the  sea,  and  this  was 
directly  upon  and  towards  the  plaintiffs'  wall.  The  case,  therefore, 
appears  to  me  to  be  the  same  as  if  the  ship  had  been  l}ing  at  anchor, 
with  the  tide  flowing  rapidly  towards  a  rock,  and  the  defendants  had, 
by  some  negligence,  broken  the  chain  and  set  free  the  ship,  in  conse- 
quence of  which  it  had  at  once  and  immediately  been  carried  by  the 
tide  with  great  force  and  violence  against  the  rock,  and  had  become  a 
wreck.  Would  not  the  UTeck  of  the  ship  have  been  caused  by  the  neg- 
ligence which  broke  the  chain?  I  think  that  it  would,  and  that  such  a 
case  and  the  case  before  the  court  are  the  same;  that  the  negligence  of 
the  crew,  the  servants  of  the  defendants,  was  thus  the  immediate  cause  i 

of  the  ship  being  driven  against  the  wall  of  the  plaintiffs,  and  that 
the  plaintiff's  are  therefore  entitled  to  recover.  My  Brother  Pigott 
concurs  in  this  judgment,  and  my  Brother  Martin,  though  enter- 
taining some  doubt  upon  the  case,  does  not  dissent. 

Judgment  for  the  plaintiffs. 


SECT.    IV.]  REdlNA   V.    HALLIDAY.  231 

REGINA   V.   HALLIDAY. 
Crown  Case  Reserved.     1889. 

[Reported  61  Law  Times  Reports,  701.] 

Case  stated  for  the  opinion  of  the  Court  for  the  Consideration  of 
Crown  Cases  Reserved  by  the  Chairman  of  the  Court  of  Quarter  Ses- 
sions of  the  Count}-  Palatine  of  Durham:  — 

At  the  Michaelmas  Quarter  Sessions  1889  of  the  county  of  Durham, 
the  prisoner  James  Halliday  was  tried  before  nie  on  an  indictment 
charoino-  him  with  havino-  on  the  19th  June  1889  wilfullv  and  maliciouslv 
inflicted  ffrievous  bodilv  harm  on  Marv  Jane  Hallidav.  and  (in  a  second 
count)  with  having  assaulted  her,  thereby  occasioning  her  actual  bodily 
harm. 

It  was  proved  that  Mary  Ann  [Jane?]  Halliday  was  prisoner's  wife, 
that  he  had  been  frequently'  drunk  during  the  twelve  months  preceding 
the  day  on  which  the  offence  was  committed,  that  while  drunk  his  lan- 
guage was  very  violent  and  allusive,  that  he  had  threatened  her  fre- 
quently, and  that  in  consequence  of  his  threats  she  had  had  to  leave 
home  and  so  to  a  neighbor's  house  about  a  week  before  the  last- 
mentioned  day,  but  he  had  never  actually  used  violence  towards  her. 
On  the  day  in  question,  in  consequence  of  a  request  made  to  her  b^' 
Margaret  Ann  Halliday  (the  daughter  of  prosecutrix  and  prisoner),  the 
prosecutrix  went  home  and  found  prisoner  very  drunk  ;  the  son  of  the 
prisoner  and  prosecutrix  was  also  there,  and  whilst  he  remained  prisoner 
was  quiet,  but  the  son  left  the  house  after  a  sliort  interval  and  then 
prisoner  fastened  the  door  and  windows  and  said  to  prosecutiix,  "Now, 

you  b ,  I'll  talk  to  you;"  also  calling  her  bad  names  and  ordering 

her  and  the  c  aughtar  off  to  bed.  Prosecutrix  was  in  an  inner  room, 
and  prisoner  shortly'  afterwards  called  out  to  her,  asking  if  she  was  in 
bed.  Prosecutrix  said  she  was  not,  whereupon  prisoner  exclaimed, 
"•  I  '11  make  you  so  that  you  can't  go  to  bed,"  and  whilst  staggering 
towards  the  inner  room  he  knocked  himself  against  a  closet  in  the 
outer  room.  Prosecutrix  was  afraid  he  would  blame  her  for  that,  and 
ran  to  the  window,  took  the  hasp  ofl'  it  and  opened  it  in  order  to  get 
out,  and  had  got  one  leg  out  when  their  daughter  caught  hold  of  her 
and  held  her.  Prisoner  by  this  time  had  got  into  the  room  where  pros- 
ecutrix was,  and  was  within  reach  of  her.  and  was  calling  out  "  Let 

the  b go,"  whereupon   the  daughter  left  liold   and  prosecutrix  fell 

into  the  street  and  broke  her  leg.  Botli  mother  and  daughter  were 
very  frigiitened.  Whilst  prosecutrix  was  lying  on  the  flags  beneath, 
prisoner  jeered  at  her  from  the  window,  saying  it  served  her  right,  and 
he  made  no  attempt  to  help  her. 

On  these  facts  I  directed  the  juiy  that,  if  the  prosecutrix's  api)rehen- 
sion  was  well  grounded,  taking  into  account  the  circumstances  in  vvhich 
she  was  placed,  and  if  getting  out  of  the  window  was  an  act  such  as 
under  the  circumstances  a  woman  might  reasonably  be  led  to  take,  they 
should  find  the  prisoner  guilty.     The  jury  returned  a  general  verdict  of 


232  REGINA   v.    IL\LLIDAY.  [CHAP.    III. 

guilty  on  the  whole  indictment,  and  I  sentenced  him  to  six  months 
imprisonment  with  hard  labor.  Defendant  is  in  her  Majesty's  prison 
at  Durham  undergoing  the  sentence. 

The  question  for  the  court  is,  whether  or  not  the  prisoner  was  rightly 
convicted. 

No  one  appeared  on  behalf  of  the  prisoner. 

J.  L.  Walton  (with  him  Simey),  on  behalf  of  the  prosecution,  sub- 
mitted that  the  term  '*  inflict"  is  convertil)le  with  the  term  "•  cause  to 
feel,"  and  means  in  sect.  20  of  24  &  2o  Vict.  c.  100,  to  be  responsible 
for  acts  that  cause  harm  to  an}-  pei'son.  That  construction  had  been 
placed  upon  the  word  in  sect.  18  of  the  Act,  and  a  cliarge  of  felony 
sustained  upon  points  xavy  similar  to  those  in  the  present  case  ;  and  it 
had  been  lield  that  the  words  "cause"  and  "•  inflict"'  were  convertible 
terms.  There  was  a  distinction  between  this  case  and  Regr.  u.  Martin 
(8  Q.  B.  Div.  54;  14  Cox  C.  C.  633).  For  there  the  persons  were 
injured  by  the  physical  act  of  the  prisoner,  and  witliout  any  act  of  their 
own,  while  here  the  jump  from  the  window  was  the  voluntar}'  act  of  the 
woman.  But  a  man  ditl  not  the  less  cause  a  thing  because  he  inflicted 
it ;  and  it  was  clear  that,  if  the  woman  had  died,  the  prisoner  could 
have  been  convicted  of  manslaughter,  if  not  of  murder.  There  were  a 
series  of  authorities,  commencing  with  Rex  v.  Evans  (1  Russ.  on 
Crimes,  4th  ed.  [).  G56),  as  to  the  responsil:)ilit3'  of  a  person  who  causes 
another  person  to  take  upon  himself  coixUict  which  causes  injur}'.  In 
that  case,  Heath,  Gibbs,  and  Bayle}',  JJ.,  were  of  opinion  that,  if  a 
woman's  death  had  been  occasioned  partlj'  b}'  her  husband's  blows  and 
partly  b}-  falling  from  a  window  out  of  which  she  threw  herself,  yet,  if 
she  was  constrained  by  her  husband's  threats  of  further  violence,  and 
from  a  well-grounded  apprehension  of  his  doing  such  further  violence 
as  would  endanger  iier  life,  he  was  answerable  for  the  consequences  of 
the  fall  as  much  as  if  he  had  thrown  her  out  of  the  window  himself. 
In  Rex  V.  Hickman  (6  C.  &  P.  151)  a  prisoner  was  held  guilty  of  mur- 
der who  had  charged  another  person  on  horseback  and  so  frightened 
him  that  he  spurred  his  horse,  and  in  consequence  the  horse  fell  and 
the  man  was  killed.  In  Reg.  v.  Pitts  (C.  &  Mars.  284),  the  prisoner 
was  charged  with  the  murder  of  a  man  whose  bodv  was  found  in  a 
canal,  there  being  signs  of  violence  and  a  struggle  on  the  banks  of  the 
canal,  and  Erskine,  J.,  told  the  jury  that  a  man  might  throw  himself  into 
a  river  under  such  circumstances  as  xendered  it  not  a  voluntar\-  act,  by 
reason  of  force  either  applied  to  the  body  or  ilie  mind.  It  was  there- 
fore immaterial  w  hether  the  physical  act  of  the  prisoner  operates  on  the 
bod}'  or  mind,  if  injury  is  caused ;  and  here  there  was  ample  evidence 
that  the  woman  got  out  of  the  window  in  consequence  of  her  husband's 
threats  operating"  upon  her  mind  so  as  to  cause  her  to  fear  immediate 
danger. 

Lord  Coleridge,  C.  J.  I  am  of  opinion  that  the  conviction  in 
this  case  is  correct,  and  that  the  sentence  should  be  afl^rmed.  The 
principle  seems  to  me  to  be  laid  down  quite  fully  in  Wiig.  v.  Martin 
(8  Q.  B.  Div.  54  ;   14  Cox  C.  C.  633).     There  this  court  held  that  a 


SECT,    n.]  BEATTY    V.    GILLBANKS.  233 

man  who  had  either  taken  advantage  of  or  had  created  a  panic  in  a 
theatre,  and  had  obstructed  a  passage,  and  rendered  it  difficult  to  get 
out  of  the  theatre,  in  consequence  of  which  a  number  of  people  were 
crushed,  was  answerable  for  the  consequences  of  what  he  had  done. 
Here  the  woman  came  by  her  mischief  by  getting  out  of  the  window  — 
I  use  a  vague  word  on  purpose  —  and  in  her  f:dl  broke  her  leg.  Now 
that  might  have  been  caused  by  an  act  which  was  done  accidentall_y  or 
deliberately,  in  which  case  the  prisoner  would  not  have  been  guiltv.  It 
appears  from  the  case,  however,  that  the  prisoner  litid  threatened  his 
wife  more  than  once,  and  that  on  this  occasion  he  came  home  drunk, 
and  used  words  which  amounted  to  a  threat  against  her  life,  saying 
"  I  '11  make  you  so  that  you  can't  go  to  bed  ;  "  that  she,  rushing  to  the 
window,  got  half  out  of  the  window,  when  she  was  restrained  by  her 
daughter.  The  prisoner  threatened  the  daughter,  who  let  go,  and  hef 
mother  fell.  It  is  suggested  to  me  by  my  learned  brother  that,  sup- 
posing the  prisoner  had  struck  his  daughter's  arm  without  hurting  her, 
but  sufficientl}-  to  cause  her  to  let  go.  and  she  had  let  her  mother  fall. 
could  any  one  doubt  but  that  that  would  be  the  same  thing  as  if  he  had 
pushed  her  out  himself  ?  If  a  man  creates  in  another  man's  mind  an 
immediate  sense  of  danger  which  causes  such  person  to  try  to  escape, 
and  in  so  doing  he  injures  himself,  the  person  who  creates  such  a  state 
of  mind  is  responsible  for  the  injuries  which  result.  I  think  that  in 
this  case  there  w^as  abundant  evidence  that  there  was  a  sense  of  imme- 
diate danger  in  the  mind  of  the  woman  caused  l)v  the  acts  of  the  pris- 
oner, and  that  her  injuries  resulted  from  what  such  sense  of  danger 
caused  her  to  do.  I  am  therefore  of  opinion  that  the  prisoner  was 
rightly  convicted,  and  that  this  conviction  must  be  affirmed. 

Mathew,  J.  I  am  of  the  same  opinion.  The  jury  must  be  taken 
to  have  inferred  that  the  act  of  escaping  from  the  window  and  the  act 
of  the  daughter  were  the  consequences  of  the  prisoner's  acts  ;  and  I  am 
of  opinion  that  he  is  liable  for  the  consequences  of  such  acts. 

Cave,  Day,  and  Smith,  JJ.,  concurred.^ 

Conviction  arffirmed. 


BEATTY    V.   GILLBANKS. 

Queen's  Bench  Division.     1882. 

[Reported  15  Cox  C.  C.  138.] 

Field,  J.  -  I  am  of  opinion  that  this  order  cannot  be  supported,  and 
must  therefore  be  discharged.  The  appellants,  it  appears,  together 
with  a  large  number  of  other  people,  belong  to  a  body  of  persons  called 

'  Part  of  the  opinion  is  omitted.  —  Ed. 

2  The  opinion  of  Field,  J.,  only  is  printed.  Cave,  J.,  delivered  a  concurring 
opinion. 


234  BEATTY   V.    GILLBANKS.  [CHAP.    III. 

the  Salvation  Army,  who  are  associated  together  for  a  purpose  which 
cannot  be  said  to  be  otherwise  than  hxwfnl  and  hviidal)le,  or  at  all  events 
cannot  be  called  nnlawfnl,  their  object  and  intention  being  to  induce  a 
class  of  persons  who  Iiave  little  or  no  knowledge  of  religion  and  no  taste 
or  disijosition  for  religious  exercises  or  for  going  to  places  of  worship, 
to  join  tlieni  in  tiieir  processions,  and  so  to  get  them  togetlier  to  attend 
and  take  part  in  their  religious  exercises,  in  the  hope  tliat  they  nuiy  be 
reclaimed  and  drawn  away  froiu  vicious  and  irreligious  habits  and 
courses  of  life,  and  that  a  kind  of  revival  in  the  matter  of  religion 
may  be  brought  about  amongst  those  who  were  previously  dead  to  any 
sucli  influences.  That  undoubtedly  is  the  object  of  tlie  Salvation  Army 
and  of  the  appellants,  and  no  other  oltject  or  intention  has  been  or 
cau  be  imputed  to  them  ;  and,  as  has  been  said  by  their  learned  coun- 
sel, and  doubtless  with  perfect  truth,  so  far  are  they  from  desiring  to 
carry  out  that  object  by  means  of  any  force  or  violence,  their  principles 
are  directly  and  entirely  opposed  to  any  conduct  of  tliat  kind,  or  to  the 
exercise  or  employment  of  auytliing  like  physical  force  ;  and,  indeed, 
it  appears  tliat  on  the  occasion  in  question  they  used  no  personal  force 
or  violence,  but,  on  the  contrary,  when  arrested  by  the  police,  they 
submitted  quietly  without  the  exhibition  of  an}'  resistance  either  ou 
their  own  parts  or  ou  tluxt  of  any  otiier  member  of  their  body.  Such 
being  their  lawful  object  and  intention,  and  having  no  desire  or  inten- 
tion of  using  force  or  violence  of  an}'  kind,  it  appeared  that  on  this 
26th  day  of  March  they  assembled,  as  they  had  previously  done  on 
other  occasions,  in  considerable  numbers  at  their  liall,  and  proceeded 
to  march  thence  in  procession  through  the  streets  of  the  town  of  Westcn- 
super-Mare.  Now  that,  in  itself,  was  certainly  not  an  imlawful  thing 
to  do,  nor  can  such  an  assembly  be  said  to  be  an  unlawful  one.  Numer- 
ous instances  might  be  mentioned  of  large  bodies  of  persons  assembling 
in  much  larger  numbers,  and  marching,  accompanied  by  banners  and 
bands  of  music,  through  the  public  streets,  and  no  one  has  ever  doubted 
that  such  processions  were  perfectly  lawful.  Now  the  appellants  com- 
plain that,  for  having  so  assembled  as  I  liave  before  stated,  they  have 
been  adjudged  guilty  of  the  offence  of  holding  an  unlawful  assembly, 
and  have  in  consequence  been  ordered  to  find  sureties  to  keep  the  peace, 
in  the  absence  of  any  evidence  of  their  having  broken  it.  It  was  of 
course  necessary  that  the  justices  should  find  that  some  unlawful  act 
had  been  connnitted  by  the  appellants  in  order  to  justify  the  magis- 
trates in  binding  them  over.  Tlie  offence  charged  against  them  is 
"  unlawfully  and  tumultuously  assembling  with  others  to  the  disturb- 
ance of  the  public  peace,  and  against  the  peace  of  the  Queen  ; "  and  of 
course,  before  they  can  be  convicted  upon  the  charge,  clear  [U'oof  mu$t 
be  adduced  that  the  specific  offence  charged  has  been  couunitled.  Now, 
was  that  charge  sustained?  There  is  no  doubt  that  the  ai)pellants 
did  assemble  together  with  other  persons  in  great  numbers,  but  that 
alone  is  insuflicient.  The  assembly  must  be  a  "  tumultuous  assembly  " 
and  "against  the  peace,"  in  order  to  render  it  an  uulawful  one.     But 


1 


SECT.    l\.]  BEATTY   l\    GILLBANKS.  235 

there  was  nothing,  so  far  as  the  appeHants  were  concerned,  to  show  that 
their  conduct  was  in  the  least  degree  "  tainiiltuous  "  or  "  against  tlie 
peace."    All  that  they  did  was  to  assemble  together  to  walk  through 
the  town  ;  and  it  is  admitted  by  the  learned  counsel  for  the  respondent, 
that  as  regards  tlie  appellants  themselves,  there  was  no  disturbance  of 
the  peace,  and  that  their  conduct  was  quiet  and  peaceable.     But  then 
it  is  argued  that,  as  in  fact  their  line  of  conduct  was  the  same  as  had 
on  previous  similar  occasions  led  to  tumultuous  and   riotous  proceed- 
ings with  stone-throwing  and  fighting,  causing  a  disturbance  of  the 
public  peace  and  terror  to  the  inhabitants  of  the  town,  and  as  on  the 
present  occasion   like   results   would  in   all   probabilit}'   be  produced, 
therefore  the  appellants,  being  well  aware  of  the  likelihood  of  such 
results  again  occurring,  Avere  guilty  of  the  offence  charged  against 
them.     Now,  without  doubt,  as  a  general  rule  it  must  be  taken  that 
every  person  intends  what  are  the  natural  and  necessary  consecpiences 
of  his  own  acts  ;   and  if  in  the  present  case  it  iiad  been  their  intention, 
or  if  it  had  been  the  natural  and  necessary  consequence  of  their  acts, 
to  produce  the  disturbance  of  the  peace  which  occurred,  then  the  appel- 
lants would  have  been  responsible  for  it,  and  the  magistrates  would 
have  been  right  in  binding  them  over  to  keep  the  peace.    But  the  evi- 
dence as  set  forth  in  the  case  shows  that,  so  far  from  that  being  the 
case,  the  acts  and  conduct  of  the  appellants  caused  nothing  of  the 
kind,  but  on  the  contrary,  that  the  disturbance  that  did  take  place  was 
caused  entirely  by  the  unlawful  and  unjustifiable  interference  of  the 
Skeleton  Army,  a  body  of  persons  opposed  to  the  religious  views  of 
the  appellants  and  the  Salvation  Army,  and  that  but  for  the  opposition 
and  molestation  offered  to  the  Salvationists  by  these  other  persons,  no 
disturbance  of  any  kind  would  have  taken  place.    The  appellants  were 
guilty  of  no  offence  in  their  passing  through  the  streets,  and  why  should 
other  persons  interfere  with  or  molest  them?     What  riglit  had  they  to 
do  so?     If  they  were  doing  anytliing  unlawful,  it  was  for  the  magis- 
trates and  police,  the  a[)pointed  guardians  of  law  and  order,  to  inter- 
pose.    The  law  relating  to  unlawful  assemblies,  as  laid  down  in  tlie 
books  and  the  cases,  affords  no  support  to  the  view  of  the  matter  for 
which  the  learned  counsel  for  the  respondent  was  obliged  to  contend, 
viz.,  that  persons  acting  lawfully  are  to  be  held  responsible  and  pun- 
ished merely  because  other  persons  are  thereby  induced  to  act  unlaw- 
fully and  create  a  disturbance.     In  1  Russell  on  Crimes  (4th  edit.  p. 
387),  an  unlawful  assembly  is  defined  as  follows  :  "An  unlawful  assem- 
bly, according  to  the  common  opinion,  is  a  disturbance  of  the  peace 
by  persons  barely  assembling  together  with  the  intention  to  do  a  thing 
which,  if  it  were  executed,  would  make  them  rioters,  but  neither  actually 
executing  it  nor  making  a  motion  towards  the  execution  of  it."    It  is 
clear  that,  according  to  tliis  definition  of  the  offence,  the  appellants 
were  not  guilty ;  for  it  is  not  pretended  that  they  had,  but,  on  the  con- 
trary, it  is  admitted  that  they  had  not,  any  intention  to  create  a  riot, 
or  to  commit  au}'  riotous  or  other  unlawful  act.     Many  examples  of 
what  are  unlawful  assemblies  are  given  in  Hawkins'  Pleas  of  the  Crown, 


236  WISE   V.   DUNNING.  [ciIAP.    III. 

book  1,  cap.  28,  ss.  9  and  10,  in  all  of  which  the  necessary  circum- 
stances of  terror  are  present  in  tlie  assembly  itself,  either  as  I'egards 
the  object  for  wliich  it  is  gathered  together,  or  in  the  manner  of  its 
assembling  niiil  j)roceeding  to  carry  out  tliat  object.  The  present  case, 
however,  differs  from  the  cases  there  stated  ;  for  here  tiie  only  terror 
tliat  existed  was  caused  by  the  unlawful  resistance  wilfully  and  design- 
edly offered  to  the  proceedings  of  the  Salvation  Army  by  an  unlawful 
organization  outside  and  distinct  from  them,  called  the  Skeleton  Army, 
it  was  suggested  by  the  respondent's  counsel  that  if  these  Salvation 
processions  were  allowed,  similar  opposition  would  be  offered  to  them 
in  future,  and  that  similar  disturbances  would  ensue.  But  1  cannot 
believe  that  that  will  be  so.  1  hope,  and  1  cannot  but  think,  that  when 
the  Skeleton  Army,  and  all  other  persons  who  are  opposed  to  the  pro- 
ceedings of  the  Salvation  Army,  come  to  learn,  as  they  surely  will 
learn,  tluit  they  have  no  possible  right  to  interfere  with  or  in  any 
way  to  obstruct  the  Salvation>  Army  in  their  lawful  and  peaceable  pro- 
cessions, they  will  abstain  from  opposing  or  disturbing  them.  It  is 
usual,  happily,  in  this  country  for  people  to  respect  and  obey  the  law 
when  once  declared  and  understood,  and  I  hope  and  have  no  doubt 
that  it  will  be  so  in  the  present  case.  But  if  it  should  not  be  so,  there 
is  no  doubt  that  the  magistrates  and  police,  both  at  Weston-super- 
jMare  and  everywhere  else,  will  understand  their  duty  and  not  fail  to 
do  it  etiiciently,  or  hesitate,  should  the  necessity  arise,  to  deal  with 
the  Skeleton  Army  and  other  disturbers  of  the  public  peace  as  they 
did  in  the  present  instance  with  the  appellants  ;  for  no  one  can  doubt 
tiia^  the  authorities  are  only  anxious  to  do  their  duty  and  to  prevent  a 
disturbance  of  the  public  peace.  The  present  decision  of  the  justices, 
however,  auiounts  to  this,  that  a  man  may  be  punished  for  acting  law- 
fully it  he  knows  that  his  so  doing  may  induce  another  man  to  act 
unlawfully,  —  a  proposition  without  any  authority  whatever  to  support 
it.  Under  these  circumstances,  the  questions  put  to  us  by  the  justices 
nuist  be  negatively  answered,  and  the  oider  appealed  against  be  dis- 
charged. 


WISE    V.  DUNXING. 

High  Court  ok  Justice,  Kixg's  Bknch  Division.     1902. 

[Reported  1902,  1  K.  B.  167.] 

LoKD  Alverstonk,  C.  .T.  This  is  a  case  stated  by  way  of  appeal 
from  an  order  made  by  the  stipendiary  magistrate  of  Liverpool  bind- 
ing over  the  appellant  "to  be  of  good  behaviour."  The  recogniz- 
ance also  bound  liim  over  "  to  keep  the  peace";  but  the  actual  form 
of  it  is  not  nuiterial  because  it  contained  tlie  words  "to  be  of  sood 
behaviour."  Tlie  case  has  been  extremely  well  argued.  I  am  of 
opinion  that  the  magistrate  was  perfectly  justified  in  putting  the  ap- 
pellant under  recognizances.     It  is  not  necessaiy  to  go  at  great  length 


SECT.    IV.]  WISE   V.    DUNNING.  237 

into  the  various  authorities  which  were  cited  to  us  ;  I  am  not  able  to 
find  in  those  authorities  any  statement  of  a  rule  of  law  which  is  to  be 
applied  in  all  such  cases  as  this.  The  difficult}'  arises  from  attempts 
to  apply  the  law  to  particular  states  of  circumstances,  for  it  is  obvious 
that  different  people  may  express  different  opinions  as  to  what  ought  to 
have  been  the  application  of  the  law  under  particular  circumstances. 
For  instance,  our  attention  was  called  to  the  opinion  of  a  very  learned 
lawyer  and  writer,  Mr.  Dicey,  with  respect  to  Beatty  r.  Gillbanks,  9  Q. 
B.  D.  308,  and  his  opinion,  as  I  understood  the  passage  when  read,  was 
that  the  view  taken  by  the  Irish  courts  is  in  conflict  with  that  taken  by 
Field,  J.,  and  Cave,  J.,  in  tiiat  case.  But  I  think  that,  when  Beatty  v. 
Gillbanks,  supra,  is  closely  examined,  it  lays  down  no  law  inconsistent 
with  anything  stated  by  the  judges  in  the  Irisli  cases.  For  this  purpose 
it  is  sufficient  to  cite  the  following  passages.  In  Beatty  v.  Gillbanks, 
su])ra,  Field,  J.,  said,  stating,  I  think,  the  law  with  absolute  accuracy  : 
"  Now  I  entirely'  concede  that  every  one  must  be  taken  to  intend  the 
natural  consequences  of  his  own  acts,  and  it  is  clear  to  me  that  if  this 
disturbance  of  the  peace  was  the  natural  consequence  of  acts  of  the 
appellants  they  would  be  liable,  and  the  justices  would  have  been  right 
in  binding  them  over.  But  the  evidence  set  forth  in  the  case  does  not 
support  this  contention."'  O'Brien,  C.  J.,  in  Reg.  /-.  Justices  of  London- 
derry, 28  L.  R.  Ir.  at  p.  447,  said  :  "  Xo  act  on  the  part  of  any  person 
was  proved  to  shew  that  it  was  reasonabl}'  probable  that  the  conduct  of 
the  defendants  would,  on  the  day  in  question,  have  provoked  a  breach 
of  the  peace."  It  is,  in  my  opinion,  important  to  emphasize  that  enun- 
ciation of  the  necessary  test,  because  it  has  been  pressed  upon  us  by  the 
appellant's  counsel  that  if  the  appellant  did  not  intend  to  act  unlawfully 
himself,  or  to  induce  other  persons  to  act  unlawfully,  the  fact  that  his 
words  might  have  led  other  people  so  to  act  would  not  be  sufficient. 

In  Reg.  V.  Justices  of  Cork,  15  Cox,  C.  C.  78,  at  p.  84,  May,  C.  J., 
after  quoting  the  passage  from  Blackstone  which  was  read  to  us  during 
-the  argument,  proceeded  :  "  This  requisition  of  sureties  must  be  under- 
stood rather  as  a  caution  against  the  repetition  of  the  offence  than  any 
immediate  pain  or  punishment.  This  caution  is  such  as  is  intended 
mereh'  for  prevention  without  any  crime  actually  committed  by  the 
part}',  but  arising  onl}'  from  a  probable  suspicion  that  some  crime 
is  intended  or  likel}'  to  happen,  and  consequently  it  is  not  meant  as 
an}'  degree  of  punishment,  unless  perhaps  for  a  man's  imprudence  in 
giving  just  ground  for  apprehension."  Again,  in  the  second  case  of 
Reg.  V.  Justices  of  Cork,  15  Cox,  C.  C.  149,  reported  in  the  same  vol- 
ume, Fitzgerald,  J.,  after  referring  to  the  authorities,  said,  15  Cox, 
C.  C.  at  p.  155:  ''Without  citing  further  authority  we  may  assume 
that  where  it  shall  be  made  reasonably  to  appear  to  a  justice  of  the 
peace  that  a  person  has  incited  others  by  acts  or  language  to  a  viola- 
tion of  law  and  of  right,  and  that  there  is  reasonable  ground  to  believe 
that  the  delinquent  is  likely  to  persevere  in  that  course,  such  justice 
has  authority  by  law,  in  the  execution  of  preventive  justice,  to  provide 
for  the  public  security  by  requiring  the  individual  to  give  securities  for 


238  WISE    v.    DUNNING.  [CHAP.    III. 

good  behaviour,  and  in  default  commit  him  to  prison."  I  have  referred 
to  those  cases,  not  foi- the  purpose  of  endeavouring  to  deduce  from  them 
any  new  rule  of  hiw,  but  for  the  [purpose  of  pointing  out  that,  in  a 
number  of  cases  and  before  different  judges,  wliat  1  may  call  the  essen- 
tial condition  has  been  stated,  substantially  in  the  same  way  though  in 
different  language,  that  there  niust  be  an  act  of  the  defendant,  the 
natural  consequence  ot  which,  if  his  act  be  not  unlawful  in  itself,  would 
l)e  to  produce  an  unlawful  act  by  other  persons.  This  case  might  really 
l)c  put  higher,  liut  I  have  so  far  dealt  with  the  matter  assuming  the 
facts  in  favour  of  the  argument  of  the  counsel  for  the  appellant.  I 
think  that  the  local  Act,  to  which  we  were  referred,  has  a  \evy  impor- 
tant bearing  on  this  case.  It  provides  that  an\*  person  who  uses  any 
threatening,  or  abusive,  or  insulting  words  or  behaviour  with  intent  to 
provoke  a  breach  of  the  peace  (which  is  not  this  case),  or  wherein'  a 
breach  of  the  peace  ma}-  be  occasioned,  ma\'  be  summoned  before  the 
local  magistrates  and  fined.  It  was  contended  for  the  api)ellant  that 
the  Act  was  onU*  intended  to  prevent  persons  from  using  bad  lan- 
guage in  the  streets  of  Liverpool  with  impunity.  Though  that  may 
have  been  one  of  the  evils  which  the  Act  aimed  at,  I  do  not  think  that 
its  scope  was  so  limited.  Here  we  have  distinct  findings  of  facts  that 
the  appellant  held  a  number  of  meetings  in  the  public  streets  ;  that  the 
highways  were  blocked  by  crowds  numbering  thousands  of  persons  ; 
that  very  serious  contests  and  breaches  ot"  the  peace  had  arisen,  and  that 
the  appellant  himself  used,  with  respect  to  a  large  body  of  persons  of  a 
different  religion,  language  which  the  magistrate  has  found  to  be  of 
a  most  insulting'  character,  and  that  the  appellant  challenged  any  one 
of  them  to  get  up  and  deny  his  statements.  Magistrates  are  only 
doing  their  duty  when  the}*  have  regard  to  and  make  themselves 
acquainted  with  the  character  of  the  population  amongst  whom  they 
have  to  administer  justice  ;  and,  in  considering  the  natural  consequence 
of  a  man's  acts  who  has  used  insidting  language  in  the  public  streets 
towards  persons  of  a  particular  religion,  the  magistrates  are  bound  to 
take  into  consideration  the  fact  that  there  is  a  large  body  of  those  per- 
sons in  the  town.  The  appellant  also  was  proved  to  have  stated,  with 
resi)ect  to  a  meeting  he  intended  to  hold,  that  he  had  received  a  letter 
informing  him  that  the  Catholics  were  going  to  bring  sticks,  and  he 
told  his  supporters  that  the -police  had  refused  to  give  iiim  protection, 
and  lie  said  that  he  looked  to  them  for  protection.  On  these  facts  I 
think  no  one  could  reasonably  doubt  that  the  police  and  the  magistrate 
were  risht  in  thinkinar  that  his  language  and  conduct  went  verv  far 
indeed  towards  inciting  people  to  commit,  or  was,  at  any  rate,  lan- 
guage and  behaviour  likely  to  occasion,  a  breach  of  the  peace.  It  may 
be  true  that,  if  this  case  were  to  be  considered  with  reference  only  to 
any  particular  one  of  the  threats  or  illegalities  which  it  is  suggested  the 
appellant  has  committed,  further  evidence  would  have  been  necessary; 
but  in  my  opinion,  there  was  abundant  evidence  to  shew  that  in  the 
pulilic  streets  he  had  used  language  which  had  caused  an  obstruction, 
which  was  abusive,  which  did  tend  to  bring  about  a  breach  of  the 


-,«i 


SECT.    IV.]  WISE    V.    DUNNING.  239 

peace,  and  that  he  threatened  and  intended  to  do  similar  acts  in  another 
place.  The  fact  that  he  had  promised  not  to  hold  a  meeting  at  one 
place,  but  had  held  it  within  a  quarter  of  a  mile  of  that  place  on  the 
same  day,  shews,  at  any  rate,  that  the  magistrate  was  justified  in 
taking  precautions  to  prevent  a  repetition  of  his  previous  conduct. 

Further,  I  think  that  the  information  was  sufficient  to  justify  the 
magistrate  in  hearing  the  evidence,  and  that  any  omission  in  the  lan- 
guage of  the  information,  although  it  does  allege  meetings  on  the  higli- 
way  and  fear  of  a  breach  of  the  peace,  was  ami)ly  cured  by  the  evidence 
which  was  given.  The  magistrate  heard  the  information;  the  appel- 
lant was  represented  b}-  a  solicitor,  and  elected  to  give  no  evidence. 
Instead  of  being  punished,  he  was  properly  bound  over  to  keep  the 
peace.  I  am  of  opinion  that  the  magistrate  acted  witliin  his  jurisdic- 
tion, and  quite  rightly  ;  that  tiie  [)oints  of  law  raised  on  behalf  of  the 
appellant  fail,  and  that  our  judgment  should  be  for  the  respondent. 

Darling,  J.  I  am  of  the  same  opinion.  I  think  it  necessar\-  to 
summarize  shortly  the  facts  which  were  proved  before  the  magistrate. 
To  begin  with,  we  have  the  appellant's  own  description  of  himself. 
He  calls  himself  a  "  crusader,"  who  is  going  to  preach  a  Protestant 
crusade.  In  order  to  do  this  he  supplied  himself  with  a  crucifix,  which 
he  waved  about,  and  round  his  neck  were  hung  beads  —  obviously  de- 
signed to  represent  the  rosaries  used  by  Roman  Catholics.  Got  up  in 
tins  way  he  admittedly'  made  use  of  expressions  most  insulting  to  the 
faiih  of  the  Roman  Catholic  population  amongst  whom  he  went.  There 
had  been  disturbances  and  riots  caused  by  this  conduct  of  his  before, 
and  the  magistrate  has  found  that  the  language  of  the  appellant  was 
provocative,  and  that  it  was  likely  to  occur  again.  Large  crowds  had 
assembled  in  the  streets,  and  a  serious  riot  was  onl}'  prevented  by  the 
interference  of  the  police.  Now,  what  was  the  natural  consequence  of 
the  appellant's  acts?  It  was  what  has  happened  over  and  over  again, 
what  has  given  rise  to  all  the  cases  which  were  cited  to  us,  and  what 
must  be  the  inevitable  consequence  if  persons,  whether  Protestants  or 
Catholics,  are  to  be  allowed  to  outrage  one  another's  religion  as  the 
appellant  outraged  the  religion  of  the  Roman  Catholics  of  Liverpool. 
The  kind  of  person  which  the  evidence  here  shews  the  appellant  to  be 
I  can  best  describe  in  the  language  of  Butler.     He  is  one  of 

"...  that  stubborn  crew 
Of  errant  saints,  whom  all  men  grant 
To  be  the  true  Church  Militant ; 

A  sect,  whose  chief  devotion  lies 

In  odd  perverse  antipathies."  —  Ifudibras,  Pt.  T. 

In  my  view,  the  natural  consequence  of  those  people's  conduct  has  been 
to  create  the  disturbances  and  riots  which  have  so  often  given  rise  to 
this  sort  of  case.  Counsel  for  the  appellant  contended  that  the  natural 
consequence  must  be  taken  to  lie  the  legal  acts  which  are  a  consequence. 
I  do  not  think  so.     The  natural  consequence  of  such  conduct  is  illegal- 


240  WISE   V.    DUNNING.  [cHAP.    III. 

itv.  I  think  that  the  natural  consequence  of  this  "  crusader's  "  elo- 
quence lias  been  to  produce  illegal  acts,  and  that  from  iiis  acts  and 
conduct  circumstances  have  arisen  which  justified  the  magistrate  in 
binding  him  over  to  keep  the  peace  and  be  of  good  behaviour.  In  the 
judgment  of  O'Brien,  C.  J.,  in  Keg.  v.  Justices  of  Londonderr}-,  sv/pra, 
tliere  is  this  passage  :  "  Now  I  wish  to  make  the  ground  of  my  judgment 
clear,  and  carefully  to  guard  against  being  misunderstood.  I  am  per- 
fectly satisfied  that  the  magistrates  dfd  not  make  the  order  which  is 
impugned  by  reason  of  there  having  been,  or  there  being  likely  to  be, 
any  obstruction  of  the  highway,  and  that  the  true  view  of  what  took 
place  is  that  the  defendants  were  bound  over  in  respect  of  an  appre- 
hended breach  of  the  peace;  and,  in  m\' opinion,  there  was  no  evidence 
to  warrant  that  apprehension."  It  is  clear  that  if  there  had  been  evi- 
dence to  warrant  that  apprehension,  the  Chief  Justice  would  have  held 
the  magistrates'  decision  in  that  case  to  be  right.  It  is  said  that  Beatty 
V.  Gillbanks,  siq^ra,  is  in  conflict  witli  that  decision.  I  am  not  sure  that 
it  is.  I  am  inclined  to  think  that,  having  regard  to  the  passage  which 
my  Lord  read  from  Field,  J.'s,  judgment  in  Beatty  v.  Gillbanks,  supra, 
the  whole  question  is  one  of  fact  and  evidence.  But  I  do  not  hesitate 
to  sa}'  that,  if  there  be  a  conflict  between  these  two  cases,  I  prefer  the 
law  as  it  is  laid  down  in  Reg.  v.  Justices  of  Londonderrv,  28  L.  R.  Ir. 
440.  If  that  be  a  right  statement  of  the  law,  as  I  think  it  is,  the  magis- 
trate was  perfectlv  justified  in  coming  to  the  conclusion  he  did  come  to 
in  tliis  case,  even  witliout  taking  into  consideration  the  question  of  the 
local  Act  of  Parliament  to  which  we  were  referred. 

For  these  reasons  I  am  of  opinion  that  the  magistrate's  order  was 
right. 

Chanxell,  J.  I  am  of  the  same  opinion.  I  agree  with  the  proposi- 
tion for  W'hich  counsel  for  the  appellant  contended  —  namely,  tliat  the 
law  does  not  as  a  rule  regard  an  illegal  act  as  being  the  natural  conse- 
quence  of  a  tem[)tation  which  may  be  held  out  to  commit  it.  For  in- 
stance, a  person  who  exposes  his  goods  outside  his  shop  is  often  said  to 
tem[)t  people  to  steal  them,  but  it  cannot  be  said  that  that  is  the  natural 
consequence  of  what  he  does.  Again,  the  Hou.se  of  Lords  has  recenth' 
held  that,  wherfe  a  blank  space  is  left  in  a  cheque  which  enables  a 
person  to  increase  the  amount  by  adding  figuiies,  it  is  not  the  natural 
consequence  that  soraebod}'  should  be  led  to  commit  forgery  by  writing 
figures  into  the  cheque.  The  proposition  is  correct  and  really  familiar  ; 
but  I  think  the  cases  with  respect  to  apprehended  breaches  of  the  peace 
shew  that  the  law  does  regard  the  infirrait}-  of  human  temper  to  the 
extent  of  considering  that  a  breach  of  the  peace,  although  an  illegal  act, 
may  be  the  natural  consequence  of  insulting  or  abusive  language  or 
conduct.  Possibh'  tliis  is  an  exception  to  the  rule  which  the  appellant's 
counsel  pointed  out  to  us ;  but  I  think  it  is  quite  clearly  made  out  upon 
the  cases  which  have  been  cited  to  us. 

I  therefore  think  that  the  decision  of  the  magistrate  was  right. 

Judgment  for  the  Respondent. 


SECT.    rV.]  MCDOXALD   V.    SNELLING.  241 


McDonald  v.  snelling. 

Supreme  Judicial  Court  of  Massachusetts,  1867. 

[Reported  14  All.  290.]  , 

Tort.    The  declaration  was  as  follows: 

"And  the  plaintiflF  says  that  he  was  possessed  and  the  owner  of  a 
certain  sleigh,  and  a  certain  horse  which  was  harnessed  to  said  sleigh, 
and  the  plaintiff  was  sitting  and  riding  in  said  sleigh  so  harnessed,  in 
a  certain  highway  called  Eliot  Street,  in  said  Boston,  into  and  across 
Tremont  Street ;  and  one  Thomas  Baker  on  the  same  day  was  possessed 
of  a  certain  sleigh  and  also  of  a  certain  horse  drawing  the  same  through 
and  along  said  Tremont  Street  towards  and  near  said  Eliot  Street  in 
said  Boston.  And  whereas  then  on  the  same  day  the  defendant  was 
possessed  of  a  certain  sled  or  sleigh,  and  also  of  certain  horses  drawing 
-the  same  through  and  along  said  Tremont  Street,  and  the  said  defend- 
ant then  and  there,  by  a  certain  servant  of  him  the  said  defendant, 
had  the  care,  government,  and  direction  of  the  said  sled  or  sleigh  of  the 
said  defendant  and  defendant's  said  horses,  yet  the  said  defendant,  not 
minding  or  regarding  his  duty  in  this  behalf,  then  and  there  by  his 
said  servant  so  negligently  and  unskillfuUy  managed  and  behaved  him- 
self in  this  behalf,  and  so  ignorantly,  carelessly,  and  negligently  drove 
and  managed,  guided  and  governed  his  said  sled  or  sleigh  and  horses, 
that  the  said  sleigh  or  sled  of  the  said  defendant,  for  want  of  good  and 
sufficient  care  and  management  thereof,  and  of  the  horses  then  and  there 
drawing  the  same  as  aforesaid,  then  and  there  struck  against  the  said 
sleigh  of  the  said  Baker  with  such  force  and  \'iolence  that  the  sleigh  of 
the  said  Baker,  wherein  he  was  then  sitting  and  riding  as  aforesaid, 
was  broken  to  pieces,  by  means  whereof  the  said  horse  of  the  said 
Baker  was  put  to  fright  and  ran  with  great  violence,  threw  out  said 
Baker,  and  escaping  from  him  ran  through  and  along  said  Tremont 
Street  to  said  Eliot  Street  and  into  said  Eliot  Street,  and  upon, 
against,  and  over  the  plaintiff,  his  said  sleigh  and  horse,  with  such  force 
and  violence  that  the  plaintiff's  said  sleigh  wherein  he  was  then  and 
there  sitting  and  riding  as  aforesaid  was  thereby  broken  to  pieces  and 
destroyed,  and  the  plaintiff  thrown  with  great  \aolence  from  and  out 
of  his  said  sleigh,  and  his  collarbone  broken,  and  otherwise  greatly 
injured  and  bruised,  and  his  life  endangered,  and  the  plaintiff's  said 
horse  was  greatly  damaged  and  spoiled.  And  the  plaintiff  used  due 
care,  and  said  Baker,  his  agents  and  servants,  used  due  care,  but  said 
defendant,  his  agents  and  servants,  did  not  use  due  care." 

The  defendant  demurred  to  this  declaration,  assigning  as  causes  of 
demurrer  that  there  is  no  averment  in  the  declaration  that  the  injury 
to  the  plaintiff  occurred  by  reason  of  or  by  means  of  the  negligence 
of  the  defendant;  and  that  it  does  not  appear  from  the  averments  of 


242  Mcdonald  v.  snelling.  [chap.  hi. 

the  declaration  that  the  alleged  negligence  of  the  defendant  was  the 
proximate  cause  of  the  injury  to  the  plaintiff,  sufficient  in  law  to  render 
the  defendant  liable  in  damages. 

This  demurrer  was  overruled  in  the  Superior  Court,  and  judgment 
ordered  for  the  plaintiff;  and  the  defendant  appealed  to  tliis  court. 

•  Foster,  J.  The  cjuestion  raised  by  this  demurrer  is,  whether  the 
injury  received  by  the  plaintiff  was  so  remote  from  the  negligent  act 
of  the  defendant  that  the  action  cannot  be  sustained,  although  the 
plaintiff  was  injured  without  his  own  fault,  and  would  not  have  been 
injured  but  for  the  fault  of  the  defendant.  How  far  at  common  law  is 
one  guilty  of  negligence  responsible  in  damages  for  the  consequences 
resulting  from  his  neglect? 

If  the  present  action  had  been  brought  against  a  town,  under  cir- 
cumstances similar  to  those  disclosed  in  this  declaration.  Marble  v. 
Worcester,  4  Gray,  395,  would  be  a  decisive  authority  in  favor  of  the 
defendant.  The  liability  for  damages  caused  by  defects  in  highways 
is  limited  to  cases  where  the  defect  is  the  direct  and  immediate  cause  of 
the  injury.  Jenks  v.  Wilbraham,  11  Gray,  142.  But  this  statute 
liability  is  more  narrowly  restricted  than  the  rule  in  actions  at  common 
law  for  damages  caused  by  negligence,  in  which  it  is  perfectly  well 
settled  that  the  contributory  negligence  of  a  third  party  is  no  defense, 
where  the  defendant  has  also  been  guilty  of  negligence  without  which 
the  damage  would  not  have  been  sustained.  Eaton  v.  Boston  &  Lowell 
Railroad,  11  Allen,  500.  The  extent  of  the  defendant's  responsibility 
cannot  therefore  be  conclusively  determined  by  the  rule  of  Marble 
V.  Worcester,  because  the  limits  of  liability  under  the  statute  as  to  de- 
fects in  public  ways  and  at  common  law  for  negligence  are  not  identical. 
These  cases  against  towns  can  be  reconciled  \vith  the  general  principles 
of  the  law  only  by  the  consideration  that  they  depend  exclusively 
on  a  statute  provision,  within  the  terms  of  which  they  are  strictly  con- 
fined. 

Opinions  upon  questions  of  marine  insurance  are  frequently  quoted 
to  illustrate  the  meaning  of  the  maxim,  causa  proxima  non  remota 
sprcfatur.  The  exigencies  of  the  present  decision  do  not  require  an 
elaborate  examination  of  the  doctrine  in  its  application  to  the  law 
of  insurance;  but  a  few  observations  may  be  useful.  Where  the  im- 
mediate cause  of  loss  is  a  peril  insured  against,  the  underwTiters  are  not 
exonerated  by  the  fact  that  its  original  cause  was  something  not  covered 
by  the  policy.  They  are  liable  if  the  loss  ends  in  a  peril  insured  against, 
although  it  began  in  some  other  cause.  Thus,  a  loss  arising  immediately 
from  a  peril  of  the  sea,  but  remotely  from  the  negligence  of  the  master, 
is  protected  by  the  policy ;  but  it  by  no  means  follows  that,  in  an  action 
brougiit  against  the  owner  or  master  for  such  negligence,  the  con- 
sequent loss  of  the  cargo  could  not  be  included  in  the  measure  of  dam- 
ages. Redman  v.  Wilson,  14  M.  &  W.  476.  On  the  contrary,  where  a 
master  unnecessarily  deviated  from  his  voyage,  and  during  the  devia- 


SECT.  TV.]  Mcdonald  v.  snelling.  243 

tion  a  cargo  of  lime  was  wet  b.y  a  tempest,  and  the  bark  was  thereby 
set  on  fire  and  consumed,  the  owner  was  held  liable  for  the  fault  of 
his  agent  the  master,  and  the  deviation  was  deemed  to  be  sufficiently 
the  proximate  cause  of  the  loss  of  the  cargo.  Da\'is  v.  Garrett,  6  Bing. 
716.  In  a  recent  insurance  cause,  one  learned  judge,  Willes,  J.,  said: 
"  The  ordinary  rule  of  assurance  law  is,  that  you  are  to  look  to  the  proxi- 
mate and  immediately  operating  cause,  and  to  that  only ; "  and  another, 
Erie,  C.  J.,  said:  "The  words  are  to  be  construed  wdth  reference  to  the 
known  principle  pervading  insurance  law,  causa  proxima  noti  remota 
spedatur;  the  loss  must  be  connected  with  the  supposed  cause  of  it, 
and  in  the  relation  of  cause  and  effect,  speaking  according  to  common 
parlance."  lonides  v.  Universal  Ins.  Co.,  8  Law  Times  (N.  S.)  705. 
Marsden  v.  City  and  County  Ass.  Co.,  Law  Rep.  1  C.  P.  232.  But  in 
an  action  for  damages  for  refusing  to  receive  a  ship  into  a  dock,  the 
rule  was  said  to  be  "that  the  damage  must  be  proximate  (not  im- 
mediate) and  fairly  and  reasonably  connected  with  the  breach  of  con- 
tract or  wrong.  As  to  what  is  so,  difterent  minds  will  difl^er."  Wilson 
V.  Newport  Dock  Co.,  Law  Rep.  1  Exch.  186. 

Perhaps  the  truth  may  be  that  a  maxim  couched  in  terms  so  general 
as  to  be  necessarily  somewhat  indefinite  has  been  indiscriminately 
applied  to  different  classes  of  cases  in  different  senses,  or  at  least 
without  exactness  and  precision;  and  that  this  is  the  real  explanation 
of  the  circumstance  that  causa  proxima,  in  suits  for  damages  at  com- 
mon law,  extends  to  the  natural  and  probable  consequences  of  a  breach 
of  contract  or  tort;  while  in  insurance  cases  and  actions  on  our  highway 
statute  it  is  limited  to  the  immediately  operating  cause  of  the  loss  or 
damage.  If  this  be  so,  the  frequent  reference  to  the  maxim  in  cases 
like  the  present  is  not  particularly  useful,  and  certainly  not  conducive 
either  to  an  accurate  statement  of  principles  or  to  uniform  and  intelli- 
gible results.  In  insurance  causes  the  maxim  is  resorted  to  as  furnishing 
a  rule  by  which  to  determine  whether  a  loss  is  attributable  to  a  peril 
against  which  the  contract  has  promised  indemnity,  and  its  application 
charges  as  frequently  as  it  exonerates  the  underwriter.  Peters  v. 
Warren  Insurance  Co.,  3  Sumner,  389;  S.  C.  14  Pet.  99.  Hillier  v. 
Allegheny  County  Ins.  Co.,  3  Penn.  State  R.  470.  The  limits  of  lia- 
bility and  the  definition  of  proximate  cause  in  the  law  of  insurance  are 
too  narrow  and  restricted  to  be  applied  to  the  present  case. 

Definitions  and  illustrations  drawn  from  other  branches  of  the  law 
may  afford  instructive  analogies,  but  for  controlling  authorities  we  are 
to  look  to  adjudications  in  actions  of  a  similar  nature  to  the  present,  and 
arising  upon  a  state  of  facts  more  closely  resembling  those  now  under 
consideration.  Here  the  defendant  is  alleged  to  have  been  guilty  of 
culpable  negligence.  And  his  liability  depends,  not  upon  any  contract 
or  statute  obligation,  but  upon  the  duty  of  due  care  which  every  man 
owes  to  the  community,  expressed  by  the  maxim  sic  utere  tuo  ut  alienuvi 
non  Iced  as. 


244  MCDONALD    V.    SXELLING.  [cHAP.    III. 

Where  a  right  or  duty  is  created  wholly  by  contract,  it  can  only  be 
enforced  between  the  contracting  parties.  But  where  the  defendant  has 
A  iolated  a  duty  imposed  upon  him  by  the  common  law,  it  seems  just 
and  reasonable  that  he  should  be  held  liable  to  every  person  injured, 
whose  injury  is  the  natural  and  probalile  consequence  of  the  miscon- 
duct. In  our  opinion  this  is  the  well-established  and  ancient  doctrine 
of  the  common  law,  and  such  a  liabihty  extends  to  consequential  in- 
juries, by  whomsoever  sustained,  so  long  as  they  are  of  a  character 
likely  to  follow,  and  which  might  reasonably  have  been  anticipated  as 
the  natural  and  probable  result  under  ordinary  circumstances  of  the 
WTongful  act.  The  damage  is  not  too  remote  if  according  to  the  usual 
experience  of  mankind  the  result  was  to  be  expected.  This  is  not  an 
impracticable  or  unlimited  sphere  of  accountability,  extending  in- 
definitely to  all  possible  contingent  consequences.  An  action  can  be 
maintained  only  where  there  is  shown  to  be,  first,  a  misfeasance  or 
negligence  in  some  particular  as  to  which  there  was  a  duty  towards 
the  party  injured  or  the  community  generally;  and,  secondly,  where  it 
is  apparent  that  the  harm  to  the  person  or  property  of  another  which 
has  actually  ensued  was  reasonably  likely  to  ensue  from  the  act  or 
omission  complained  of. 

Two  recent  cases,  both  much  considered,  sound  and  consistent  with 
each  other,  well  illustrate  the  true  rule  of  law.  A  druggist  who  care- 
lessly lal)eled  belladonna,  a  deadly  poison,  as  extract  of  dandelion, 
a  harmless  medicine,  and  sent  it  so  labeled  into  the  market,  was  held, 
by  the  Court  of  Appeals  in  New  York,  liable  in  damages,  after  it  had 
passed  through  several  intervening  hands,  had  been  purchased  of  an 
apothecary,  and  administered  by  the  plaintiff  to  his  wife,  who  was 
injured  by  using  it  as  a  medicine  in  consequence  of  the  false  label. 
Thomas  v.  Winchester,  2  Selden,  397.  Here  the  dealer  owed  to  the 
public  a  duty  not  to  expose  human  life  to  danger  by  falsely  labeling 
a  noxious  drug  and  selling  it  in  the  market  as  a  harmless  article.  To 
do  so  was  culpable  and  actional)le  negligence  towards  all  likely  to  be, 
and  who  in  fact  were,  injured  by  the  mistake.  Anc^l  the  injury  that 
did  follow  was  the  natural  and  easily  foreseen  result  of  the  carelessness. 

On  the  other  hand,  where  one  article,  black  oxide  of  manganese,  in  j 

itself  harmless,  which    became   dangerous  only  by  being    combined  X, 

with  another,  was  sold  by  mistake,  the  plaintiff  who  purchased  it  of  a 
third  party  and  mixed  it  with  another  substance,  the  combination 
with  which  caused  a  dangerous  explosion,  was  held  by  this  court  to 
have  no  right  of  action  against  the  original  vendor  who  made  the  mis- 
take, for  the  damages  caused  by  the  explosion.  Davidson  v.  Nichols, 
11  Allen,  514.  The  mistake  in  regard  to  an  article  in  its  own  nature 
ordinarily  harmless,  in  the  absence  of  contract  or  false  representation, 
was  not  a  violation  of  any  public  duty,  or  negligence  of  such  a  WTong- 
ful  and  illegal  character  as  to  render  the  party  who  made  it  liable 
for  its  consequences  to  third  persons.     Nor  was  it  a  natural  and  prob- 


SECT.    IV.]  MCDONALD   V.    SNELLING.  245 

able  consequence  of  such  a  mistake  that  this  ordinarily  innocuous 
substance  would  be  mixed  with  another  chemical  agent,  become  ex- 
plosive by  the  combination,  and  a  third  party  be  thereby  injured. 

It  is  clear  from  numerous  authorities  that  the  mere  circumstance 
that  there  have  intervened,  between  the  wrongful  cause  and  the 
injurious  consequence,  acts  produced  by  the  volition  of  animals  or 
of  human  beings,  does  not  necessarily  make  the  result  so  remote  that 
no  action  can  be  maintained.  The  test  is  to  be  found,  not  in  the 
number  of  intervening  events  or  agents,  but  in  their  character,  and  in 
the  natural  and  probable  connection  between  the  wrong  done  and  the 
injurious  consequence.  So  long  as  it  affirmatively  appears  that  the 
mischief  is  attributable  to  the  negligence  as  a  result  which  might 
reasonably  have  been  foreseen  as  probable,  the  legal  liability  con- 
tinues. 

There  can  be  no  doubt  that  the  negligent  management  of  horses  in 
the  public  street  of  a  city  is  so  far  a  culpable  act  that  any  party  in- 
jured thereby  is  entitled  to  redress.  Whoever  drives  a  horse  in  a 
thoroughfare  owes  the  duty  of  due  care  to  the  community,  or  to  all 
persons  whom  his  negligence  may  expose  to  injury.  Nor  is  it  open 
to  question  that  the  master  in  such  a  case  is  responsible  for  the  mis- 
conduct of  his  servant. 

Applying  these  principles  more  closely  to  the  facts  set  forth  in  this 
declaration  and  admitted  by  the  demurrer,  we  find  that  by  careless 
driving  the  defendant's  sled  was  caused  to  strike  against  the  sleigh 
of  one  Baker  with  such  xaolence  as  to  break  it  in  pieces,  throwing  Baker 
out,  frightening  his  horse,  and  causing  the  animal  to  escape  from  the 
control  of  its  driver  and  to  run  violently  along  Tremont  Street  round  a 
corner,  near  by,  into  Eliot  Street,  where  he  ran.  over  the  plaintiff 
and  his  sleigh,  breaking  that  in  pieces  and  dashing  him  on  the  ground 
Upon  this  statement,  indisputably  the  defendant  would  be  liable  for 
the  injuries  received  by  Baker  and  his  horse  and  sleigh.  Why  is  he 
not  also  responsible  for  the  mischief  done  by  Baker's  horse  in  its 
flight?  If  he  had  struck  that  animal  with  a  whip  and  so  made  it  run 
away,  would  he  not  be  liable  for  an  injury  like  the  present?  By  the 
fault  and  direct  agency  of  his  servant  the  defendant  started  the  horse 
in  uncontrollable  flight  through  the  streets.  As  a  natural  conse- 
quence, it  was  obviously  probable  that  the  animal  might  run  over 
and  injure  persons  traveling  in  the  vicinity.  Every  one  can  plainly 
see  that  the  accident  to  the  plaintiff  was  one  very  likely  to  ensue  from 
the  careless  act.  We  are  not  therefore  dealing  with  remote  or  unex- 
pected consequences,  not  easily  foreseen  nor  ordinarily  likely  to  occur, 
and  the  plaintiff's  case  falls  clearly  within  the  rule  already  stated  as  to 
the  liability  of  one  guilty  of  negligence  for  the  consequential  damages 
resulting  therefrom. 

These  views  are  fortified  by  numerous  decisions,  to  a  few  of  which 
it  may  be  expedient  to  refer.     It  was  recently  held  by  tliis  court  that 


240  .McDonald  v.  snellixg.  [chap.  hi. 

when  a  horse  was  turned  loose  on  the  highway,  and  there  kicked  a  colt 
running  by  the  side  of  its  dam,  the  owner  of  the  horse  was  liable  for 
that  damage.  Barnes  v.  Chapin,  4  Allen,  444.  We  cannot  distin- 
guish between  the  different  ways  of  letting  a  horse  loose  upon  the  street; 
whether  by  leaving  him  there  untied,  or  leaving  a  gate  open,  or,  as 
in  the  present  case,  by  dri\nng  against  him,  and  thus  causing  him  to 
run  away.  In  Powell  r.  Deveney,  3  Cush.  300,  the  defendant's  servant 
left  a  truck  standing  beside  a  sidewalk  in  a  public  street,  with  the  shafts 
shored  up  by  a  plank  in  the  usual  way.  Another  truckman  temporarily 
left  his  loaded  truck  directly  opposite  on  the  other  side  of  the  same 
street,  after  wliich  a  third  truckman  tried  to  drive  his  truck  between 
the  two  others.  In  attempting  to  do  so  with  due  care,  he  hit  the  de- 
fendant's truck  in  such  a  manner  as  to  whirl  its  shafts  round  on  the 
sidewalk  so  that  they  struck  the  plaintiff  who  was  walking  by,  and  broke 
her  leg.  For  tliis  injury  she  was  allowed  to  maintain  her  action,  the 
only  fault  imputable  to  the  defendant  being  the  careless  position  in 
which  the  truck  was  left  bv  his  servant  on  the  street,  which  was  treated 
as  the  sole  cause  of  the  breaking  of  the  plaintiff's  leg,  and  in  legal 
contemplation  sufficiently  proximate  to  render  the  defendant  respon- 
sible. See  also  Powell  v.  Salisbury,  2  Yo.  &  Jer.  391;  Vandenburg 
t.  Truax,  4  Denio,  464;  Rigby  v.  Hewitt,  5  Exch.  240;  Greenland  v. 
Chaplin,  lb.  245;  Morrison  v.  Da\'is,  20  Penn.  State  R.  175;  Lynch  v. 
Kurdin,  1  Q.  B.  29;  Thomas  v.  Winchester,  ubi  supra,  and  cases  there 
cited.  When  a  horse  strayed  on  the  highway  and  there  viciously  and 
violently  kicked  a  child,  the  owner  was  held  not  liable  in  the  absence 
of  e\a(lence  that  he  knew  the  animal  was  in  the  habit  of  kicking;  because 
the  act  was  not  one  which  it  was  in  the  ordinary  course  of  nature  for  a 
horse  of  common  temper  and  disposition  to  do.  Cox  v.  Burbidge,  32 
Law  Journ.  (N.  S.)  C.  P.  89.  See  also  Cooke  v.  Waring,  lb.  Exch.  262. 
But  two  years  later  the  same  court  held  a  defendant  liable  who  had 
negligently  left  insecure  a  gate  which  he  was  bound  to  repair,  in  con- 
sequence of  which  his  horse  strayed  into  the  field  of  an  adjoining 
proprietor  and  there  kicked  another  horse;  because  this  was  the  natural 
consequence  of  two  horses  meeting  under  such  circumstances,  and  such 
an  injury  produced  by  such  an  aninial  was  deemed  to  be  the  proxunate 
consequence  of  the  defendant's  negligence.  Lee  v.  R~'ley,  34  Law  Journ. 
(N.  S.)  C.  P.  212.  See  also  Reed  v.  Edwards,  lb.  C.  P.  31.  .In  a  case 
where  the  defendant  left  on  the  street  exposed  for  sale  a  machine 
for  crushing  oil  cake  between  rollers,  into  the  cogs  of  which  a  little  child 
put  his  fingers  while  another  boy  turned  the  handle,  and  the  fingers 
were  crushed,  the  court  held  that  the  act  was  too  remote;  and  Bram- 
well,  B.,  said:  "The  defendant  was  no  more  liable  than  if  he  had  ex- 
posed goods  colored  ^dth  a  poisonous  plant,  and  the  child  had  sucked 
them;"  but  the  same  Baron  added,  "Further  I  can  see  no  evidence 
of  negligence  in  him.  If  his  act  in  exposing  this  machine  was  negligence, 
wall  his  act  in  exposing  it  again  be  called  wilfully  miscliievous?     If 


SECT.    IV.]  MCDONALD    V.    SNELLING.  247 

that  could  not  be  said,  then  it  is  not  negligence,  for  between  negligence 
and  wilful  mischief  there  is  no  difference  but  of  degree."  Mangan 
V.  Atherton,  Law  Rep.  1  Exch.  239.  This  case  has  no  tendency  and 
indicates  no  intention  to  overrule  Dixon  v.  Bell,  5  M.  &  S.  198,  in  which, 
an  injury  having  been  received  from  a  loaded  gun.  Lord  Ellenborough 
held  the  owner  liable  for  leaving  a  dangerous  instrument  in  a  state 
capable  of  doing  mischief,  although  the  mischief  was  caused  by  a  girl 
taking  it  up,  pointing  it  at  a  child,  and  snapping  the  trigger  after  the 
priming  had  been  withdrawn. 

It  may  not  always  be  easy  to  determine  whether  any  particular 
act  of  negligence  is  of  such  a  character  as  to  render  the  party  guilty  of 
it  liable  to  third  persons;  or  whether  the  ensuing  consequences  are 
so  far  natural  and  probable  as  to  impose  a  liability  for  them  in  damages. 
Cases  may  be  put,  falling  very  near  the  dividing  line,  and  no  rule  can 
be  laid  down  in  advance,  which  wall  determine  all  wdth  precision. 
But  the  difficulty  of  applying  a  principle  is  a  poor  argument  against  its 
validity,  unless  one  more  satisfactory  can  be  proposed  in  its  stead. 
There  may  be  discrepancies  and  want  of  uniformity  in  the  application 
of  the  principle  to  the  facts  of  particular  cases,  but  all  the  authorities 
cited  concur  in  the  support  of  the  doctrine  we  have  stated,  and  agree 
as  to  the  rule  by  which  the  extent  of  liability  for  consequential  damages 
resulting  from  negligence  ought  to  be  determined. 

In  the  opinion  of  a  majority  of  the  court,  the  demurrer  in  the  pres- 
ent case  must  be  overruled,  because  on  the  statements  of  the  declara- 
tion the  plaintiff's  injury  does  not  appear  to  be  so  remote  from  the  neg- 
ligence of  the  defendant  as  to  exonerate  the  latter  from  liability.  When 
such  a  question  is  raised  by  the  pleadings,  or  arises  upon  agreed  or  undis- 
puted facts,  it  is  matter  of  law ;  but  where  the  evidence  is  contradictory, 
or  the  inferences  to  be  drawn  from  it  are  uncertain,  the  jury  must  de- 
termine by  a  verdict  whether  the  facts  fall  within  the  rule  of  law 
to  be  laid  down  on  the  subject.  Wilson  v.  Newport  Dock  Co.,  nbi 
supra} 

Demurrer  overruled. 

'  See  also  Williams  v.  San  Francisco  &  N.  Ry.,  6  Cal.  App.  715,  93  Pac.  122; 
Boone  County  v.  Mutchler,  137  Ind.  140,  36  N.  E.  534  ;  Lake  w.  Milliken,  62  Me.  240; 
Pennsylvania  Steel  Co.  x.  Wilkinson,  107  Md.  574,  69  Atl.  412  ;  Rompillon  v.  Abbott, 
49  Hun,  607,  1  N.  Y.  Supp.  662;  Burrell  v.  Uncapher,  117  Pa.  3.53,  11  Atl.  619; 
Quinlan  v.  Philadelphia,  205  Pa.  309,  54  Atl.  1026;  Shippers'  C.  &  W.  Co.  v.  David- 
son, 35  Tex.  Civ.  App.  .558,  SO  S.  W.  1032;  Snyder  v.  Philadelphia  Co.,  54  W.  Va. 
149,  46  S.  E.  366.  — Ed. 


248     HENRY  V.  ST.  LOUIS,  KANSAS  CITY  &  NORTH'n  RY.  CO.     [cHAP.  III. 


HENRY   V.    ST.    LOUIS,    KANSAS   CITY   &   NORTHERN 

RAILWAY   CO. 

Supreme  Court  of  Missouri,  1882. 

[Reported  76  Mo.  288.] 

Hough,  J.  This  is  an  action  to  recover  damages  on  account  of 
certain  personal  injuries  received  by  the  plaintiff  and  resulting  from 
his  being  knocked  down  and  run  over  by  a  flat  car  of  the  defendant 
while  standing  behind  said  car  and  between  the  rails  of  one  of  defend- 
ant's tracks  in  its  switchyard,  in  the  town  of  Moberly,  on  the  night  of 
September  7th,  1876. 

On  the  day  of  said  7th  of  September,  the  firm  of  Platter,  Crow  &  Co^, 
of  which  plaintiff  was  a  member,  shipped  a  car  load  of  horses  from 
Chillicothe  to  St.  Louis,  over  the  railway  of  the  defendant,  under  a 
contract  which  entitled  the  plaintiff  to  transportation  on  the  train 
hauling  his  stock.  He  got  on  the  caljoose  car  of  the  freight  train  on 
which  liis  stock  was,  at  Brunswick,  and  reached  Moberly  in  safety 
about  11  o'clock  p.  m.  of  the  same  day.  When  the  train  reached 
the  roundhouse  west  of  the  passenger  depot  at  Moberly,  the  caboose 
was  detached  and  the  train  was  run  down  into  the  lower  end  of  the 
company's  yard,  east  of  the  passenger  depot,  where  a  train  was  to  be 
made  up  to  go  on  to  St.  Louis,  having  in  it  the  car  containing  plaintiff's 
stock.  W^hen  the  caboose  was  detached,  the  brakeman  said  to  the 
plaintiff,  "  You  get  out  and  go  down  to  the  other  caboose ;  this  caboose 
goes  no  further."  Plaintiff  was  also  informed  that  his  train  would 
start  from  the  lower  or  eastern  end  of  the  yard,  in  the  course  of  an 
hour  or  two.  Thereupon  plaintiff  and  one  Wagner,  who  was  also 
going  to  St.  Louis  on  the  same  train  with  plaintiff",  got  out,  and  walked 
to  the  depot,  and  after  remaining  there  about  an  hour,  went  eastward 
to  the  lower  end  of  the  yard  to  find  their  train.  The  night  was  quite 
dark,  neither  moon  nor  stars  were  shining,  but  it  wag  light  enough 
to  enal)le  plaintiff  to  distinguish  his  gray  horses  in  the  car,  when  close 
to  them.  When  he  found  the  train  containing  his  stock,  which  ap- 
peared to  be  made  up  and  ready  to  go,  he  and  Wagner-  walked  im- 
mediately back  to  the  east  or  forward  end  of  the  caboose,  which  was  at 
the  rear  or  west  end  of  the  train,  and  got  upon  the  platform  of  that 
car.  Wagner  tried  the  door  of  the  caboose,  but  failed  to  open  it,  and 
after  remaining  on  the  platform  a  few  moments,  the  plaintiff  becoming 
uneasy,  tried  the  door  and  opened  it  and  walked  in.  The  car  was 
dimly  lighted  by  a  lantern,  and,  as  plaintiff  was  about  to  seat  himself, 


SECT.  IV.]    HENRY  V.  ST.  LOUIS,  KANSAS  CITY  &  NORTH'n  RY.  CO.       249 

some  person  who  was  reclining  on  the  opposite  side  of  the  caboose  asked 
him  what  he  was  doing  in  there.  The  plaintiff  stated  that  he  had  stock 
upon  the  train,  whereupon  the  other  gruffly  said:  "Get  out  of  here; 
the  train  is  not  ready."  Plaintiff  thereupon  went  out  on  the  platform  of 
the  car,  where  Wagner  was,  and  the  two  remained  there  several  minutes 
conversing  and  studying  what  to  do.  The  yard  contained  five  parallel 
tracks.  The  car  on  which  they  stood  was  on  the  center  track,  and 
there  were  two  tracks  on  either  side,  with  spaces  between  about  six 
feet  wide.  Plaintiff  had  never  been  in  the  yard  before,  but  he  knew  it 
was  the  switchyard  of  defendant.  Wagner  stepped  down  from  the 
platform  of  the  caboose  and  turned  to  go  west  toward  the  depot; 
the  plaintiff  also  left  the  platform,  but,  wishing  to  remain  near  the 
caboose  so  he  could  conveniently  jump  on  when  they  commenced  pull- 
ing up  the  train,  he  walked  south  across  the  first  track,  which  was 
unobstructed  as  far  as  he  could  see,  both  east  and  west,  and  went  to 
the  second  track,  and  stepped  between  the  rails  of  the  second  track 
immediately  behind  the  east  end  of  a  flat  car  which  was  standing  on 
said  track,  intending  to  get  upon  the  flat  car  and  remain  there  until 
his  train  was  ready  to  start.  There  were  other  cars  west  of  the  flat 
car,  but  none  east  of  it.  As  plaintiff'  stepped  upon  the  track  he  put  his 
hand  upon  the  flat  car,  and  finding  that  they  had  been  hauling  dirt 
upon  it  concluded  that  he  would  not  soil  liis  clothes  by  getting  upon  it, 
and  he  then  turned  around  and  was  standing  with  his  back  toward 
the  car,  and  was  about  to  move  away,  when  the  flat  car  was  struck  by 
cars  pushed  against  it  from  the  west,  and  it  ran  over  him,  crushing 
his  leg.  Plaintiff  heard  no  engine  or  train  in  motion  to  the  rear  of  him, 
before  he  heard  the  noise  made  by  the  concussion  of  the  cars,  when  he 
was  struck,  and  he  saw  no  light  in  the  direction  from  which  the  cars 
came,  and  no  light  in  the  yard,  save  one  to  the  east,  and  near  the  forward 
end  of  the  train  on  which  his  stock  was.  Plaintiff'  testified  that  he  saw 
no  yardman  or  brakeman  in  the  yard,  at  or  before  the  time  of  his  in- 
jury; that,  if  there  were  any  near  enough  to  see  him,  he  did  not  see  them, 
and  that  if  there  had  been  a  brakeman  on  the  rear  of  the  train  pushed 
in  on  the  track  on  which  he  was  injured,  such  brakeman  could  not 
have  seen  him  at  the  distance  of  two  or  three  car  lengths.  The  fore- 
going are  all  the  material  facts  that  appear  in  the  testimony  for  the 
plaintiff,  and  no  additional  facts  material  to  the  plaintiff's  case  appear 
in  the  testimony  offered  by  the  defendant. 

That  portion  of  the  petition,  which  sets  forth  the  facts  constituting 
the  negligence  of  the  defendant,  relied  upon  as  giving  a  right  of  re- 
covery, is  as  follows: 

"Plaintiff  avers  that  he  was  rightly  in  said  caboose  car,  and  that 
he  had  the  right  to  be  and  remain  there,  and  to  be  conveyed  therein 
to  the  city  of  St.  Louis.  But  plaintiff  avers  the  further  fact  to  be, 
that  defendant,  by  its  agents  and  employees  in  charge  of  said  train  and 
caboose,  so  made  up  anew,  wrongfully,  and  by  force  and  \aolencej 


250     HENRY  V.  ST.  LOUIS,  IL\NSAS  CITY  &  NORTH'n  RY.  CO.     [C1LA.P.  III. 

and  without  any  cause  or  provocation  whatsoever,  drove  out  and 
expelled  him  (plaintiff)  from  out  of  said  caboose  into  the  midst  of  said 
exceeding  great  number  of  side  car  tracks  and  cars  then  and  there 
being  standing,  into  a  place  of  great  danger;  and  plaintiff  avers  that 
at  once  and  immediately,  and  before  he  had  time  or  could  extricate 
himself  from  the  networks  of  said  car  tracks  and  cars  surrounding  him, 
the  defendant,  by  its  agents  and  employees,  so  negligently  run,  man- 
aged and  backed  up  another  car,  or  another  train  of  cars,  standing  on 
another  car  track,  or  s\\itch  of  same  main  car  track,  to  which  plaintiff 
had  fled  when  expelled,  as  aforesaid,  from  the  caboose  aforesaid,  and 
that  the  defendant  had  no  light  on  the  portion  of  car  track,  or  switch 
of  car  track  aforesaid,  and  gave  no  notice,  by  ringing  of  bells  or  other- 
wise, to  him  of  mo\ang,  running,  managing  or  backing  up  of  any  train, 
or  car  of  any  train,  on  said  car  tracks,  or  any  switch  of  said  car  track, 
and  that  he  (plaintiff)  was,  without  fault  or  negligence  on  his  part, 
and  without  warning,  struck  in  the  back  and  knocked  down  and  run 
over  by  said  train  so  moved,  run,  managed,  and  backed  up  as  afore- 
said, whereby  plaintiff  was  then  and  there  greatly  injured,  damaged, 
etc." 

When  there  is  no  conflict  in  the  testimony,  and  all  the  causes  con- 
tributing to  produce  an  injurj'^  are  known  and  unquestioned,  whether 
a  given  act  in  the  chain  of  causation  is  the  remote  or  proximate  cause 
of  such  injury,  is  a  question  of  law  for  the  court. 

We  think  it  quite  plain  that  the  command  of  the  occupant  of  the 
caboose  to  the  plaintiff  to  "get  out  of  there"  was  not  the  proximate 
cause  of  his  injury.  Conceding  that  the  plaintiff's  expulsion  from  the 
interior  of  the  caboose  was  an  unlawful  act  on  the  part  of  the  defendant, 
although  the  person  who  ordered  him  out  was  not  shown  to  be  an 
employee  of  defendant  and  the  rules  of  the  company  were  not  offered 
in  evidence,  still,  the  plaintiff'  was  not  driven  from  the  platform  of  the 
caboose,  where,  from  aught  that  appears,  he  might  have  remained 
in  undisturbed  security,  until  the  train  was  ready  to  start ;  nor  was  he 
driven,  directed,  or  invited,  by  any  servant  of  the  defendant,  into  a 
place  of  danger  from  which  he  was  unable  to  rescue  himself  before  he 
was  run  over  and  injured.  It  is  perfectly  manifest  from  the  testi- 
mony, that  the  plaintiff  voluntarily  and  deliberately,  in  the  free  exer- 
cise of  his  own  judgment  and  discretion,  and  for  his  own  convenience, 
took  his  station  behind  the  car  by  which  he  was  injured;  and  there 
is  not  even  a  scintilla  of  testimony  to  the  contrary.  This  voluntary 
action  of  the  plaintiff',  and  his  consequent  injury,  cannot  in  any  legal 
sense  be  said  to  have  been  occasioned  by  his  expulsion  from  the  ca- 
boose. They  succeeded  such  expulsion,  but  they  were  not  the  natural, 
ordinary,  or  probable  consequences  thereof,  and,  therefore,  not  the  proxi- 
mate result  of  such  expulsion.  Wharton  on  Negligence,  200,  §§  134, 
138;  Haley  v.  R.  R.  Co.,  21  Iowa,  15.  "The  spontaneous  action  of  an 
independent  will,"   intervened  between  the  expulsion  from  the  car 


SECT.  lY.]    IIEXRY  V.  ST.  LOUIS,  KANSAS  CITY  &  XORTH'x  RY.  CO.       251 

and  the  injury.  The  plaintiff  acted  neither  in  precipitation,  nor  under 
excitement  caused  by  the  defendant,  but  freely  and  deliberately,  and 
under  no  compulsive  necessity  to  go  where  he  did.  If  any  injury  had 
happened  to  him  while  in  the  act  of  prudently  obeying  the  order  to 
get  out  of  the  caboose,  such  injury  would  have  been  the  proximate 
result  of  his  expulsion;  but  after  he  was  out  of  the  caboose,  he  was 
entirely  free  to  select  his  own  position,  and  did  so  after  some  minutes 
of  meditation  and  consultation  as  to  what  course  he  should  pursue. 

It  is  perhaps  pi'obable  that  if  the  plaintiff  had  not  been  ordered  out 
of  the  caboose,  he  would  not  have  been  injured,  but  this  hypothesi.s 
does  not  establish  the  legal  relation  of  cause  and  effect  between  the 
expulsion  and  the  injury.  If  the  plaintiff  had  not  left  home  he  certainly 
would  not  have  been  injured  as  he  was,  but  his  lea\'ing  home  could  not, 
therefore,  be  declared  to  be  the  cause  of  his  injury.  As  the  plaintiff's  in- 
jury was  neither  the  ordinary,  natural,  nor  probable  consequence  of  his 
expulsion  from  the  caboose,  such  expulsion,  however  it  might  excite  our 
indignation,  in  the  absence  of  any  regulation  of  the  defendant  to 
justify  it,  cannot  be  considered  in  this  action,  and  the  legal  aspect 
of  the  case  is  precisely  the  same  that  it  would  have  been  if  no  such 
expulsion  had  taken  place.  It  is  to  be  regarded  as  if  the  plaintiff 
had  gone  to  the  caboose  atid  could  not  get  in  because  it  was  locked,  or, 
being  able  to  get  in,  chose  to  remain  outside.  If  the  plaintiff  at  the 
time  he  was  injured  had  been  on  his  way  to  the  caboose  or  otherwise 
lawfully  crossing  the  track,  and  before  crossing  the  same  had  looked 
and  listened  and  could  neither  see  nor  hear  an  approaching  train,  he 
would  undoubtedly  have  a  right  of  action.  But  he  had  reached  the 
caboose  in  safety,  and  being  forbidden  to  remain  inside,  and  not  choos- 
ing to  occupy  the  platform,  or  to  stand  in  the-  open  spaces  between  the 
tracks,  voluntarily  and  without  any  necessity  therefor,  put  himself 
in  a  place  of  danger  between  the  rails  on  one  of  the  switch-tracks,  with 
knowledge  of  the  fact  that  he  was  in  defendant's  yard,  where  its  cars 
were  shifted  and  its  freight  trains  were  made  up.  If  the  plaintiff  had 
taken  a  seat  on  the  flat  car  and  by  the  concussion  which  took  place  had 
been  thrown  down  and  run  over,  it  certainly  could  not  be  claimed  that 
he  would  be  entitled  to  recover.  He  had  no  right  as  a  passenger  or 
otherwise  to  get  on  that  car  because  he  had  been  ordered  out  of  the 
caboose  in  which  he  had  a  right  to  be.  If  there  could  be  no  recovery  in 
the  case  put,  we  do  not  see  how  the  plaintiff  can  have  any  greater 
right  to  recover,  because  he  was  injured  in  the  attempt  to  get  on  said 
car. 

As  the  plaintiff  was  on  the  defendant's  track  under  such  circumstances 
as  did  not  create  any  duty  on  its  part  toward  him,  beyond  that  of  not 
wilfully  injuring  him,  it  is  unnecessary  to  consider  whether  the  ser- 
vants of  the  defendant  were  guilty  of  any  negligence  in  not  ha\'ing 
lights  and  a  brakeman  on  the  train  backed  in  from  the  west  or  in 
not  sounding  a  whistle  or  ringing  a  bell.  Hallihan  v.  R.  R.  Co.,  71  Mo. 
113;  Van  Shaick  v.  R.R.  Co.,  43  N.  Y.  527. 


252  HENDRICKSON    V.    COMMOmVEALTH.  [cHAP.    III. 

The  negligence  of  the  plaintiff  disclosed  by  his  own  testimony  must 
debar  him  from  recovery.  We  are  of  opinion  that  the  circuit  court 
erred  in  not  sustaining  the  demurrer  to  the  evidence,  and  its  judgment 
will,  therefore,  be  reversed.  The  other  judges  concur,  except  Norton, 
J.,  who  dissents.^ 


HENDRICKSON    v.   COMMONWEALTH.' 
Court  of  Appeals  of  Kentucky.     1887. 

[^Reported  85  Kentuvly,  281.] 

Judge  Lewis  delivered  the  opinion  of  the  court :  — 

Under  an  indictment  for  the  murder  of  his  wife,  appellant  was  con- 
victed of  manslaughter. 

From  the  testimony  of  a  daughter  of  the  deceased  and  step-daughter 
of  appellant,  the  only  person  present  at  the  time,  it  appears  that  a 
difficulty  took  place  at  their  residence  at  night  after  they  had  retired 
to  bed,  in  the  winter  of  1885-86,  and,  in  the  language  of  the  witness, 
occurred  as  follows :  "  The  sow  rooted  open  the  door  of  the  cabin,  and 
they  (her  mother  and  father)  fell  out  over  driving  her  out,  and  he 
choked,  beat,  scratched,  and  struck  her,  and  she  knocked  him  down 
with  the  iron  shovel,  and  got  on  him,  choked  him,  and  asked  him  how 
he  felt ;  and  he  started  towards  his  breeches  and  said  :  '  If  I  had  my 
knife  —  I  will  get  my  knife  and  I  '11  cut  your  dog  gon'd  throat ; '  and 
that  she  ran  out  at  the  door  and  did  not  return  that  night ;  that  he 
shut  the  door  after  her  and  propped  it  with  a  stick  of  wood  and  went 
to  bed."  She  further  stated  that  next  morning  she  went  to  look  for 
her  mother  and  found  her  lying  in  the  snow  dead,  and  when  she  started 
appellant  told  her  to  take  her  ujother's  shoes  and  stockings. 

The  statement  to  the  jury,  made  by  appellant  himself,  is,  that  the 
deceased  commenced  the  fight,  getting  him  down  on  the  floor,  wlien  he 
choked  and  bit  her,  and  she  then  knocked  him  down  with  an  iron 
shovel,  and  got  on  and  choked  him,  and  then  jumped  np  and  ran  out 
of  the  door,  saying  she  would  have  him  arrested  and  put  in  jail.  lie, 
however,  admits  he  said  to  her  that  if  lie  had  his  knife  he  would  cut 
her,  and  started  for  his  breeches. 

From  the  testimon_y  of  a  witness  it  appears  that  the  place  where  the 

deceased  lay  was  within  about  one  liundrefl  vards  of  his  house,  and 

about  half  mile  of  her  residence,  and  that  in  going  to  the  place  whei-e 

she  was   found  she  had  passed   by  the  gate  of  another  person,  and 

1  See  Lewis  v.  Flint  &  P.  M.  R.  R.,  54  Mich.  55.  — Ed. 


SECT.    IV.]  HENDRICKSON   V.    COMMONIVEALTH,  253 

• 

within  twenty  feet  of  his  lionse,  which  was  two  hundred  and  fifty  yards 
nearer  her  own  residence  than  was  the  ijlace  where  she  xlied.  When 
found  she  was  lying  on  her  face  dead  and  badly  frozen,  the  weather 
being  extreniel}'  cold,  and  where  she  lay  were  signs  of  stirring  in  the 
snow,  which  was  about  eighteen  inches  deep.  When  she  left  her 
residence  she  was  barefooted  and  had  on  ver^'  little  clothing,  and  along 
the  route  she  took,  which  led  through  briers,  there  were  small  quanti- 
ties of  blood  and  fragments  of  clothing  that  had  been  torn  off  by  the 
briers  ;  and  at  another  place  she  had  struck  her  ankle  against  the  end 
of  a  log  and  it  bled  freely.  The  witnesses  testifj-  that  there  were 
scratches  on  each  side  of  her  neck,  and  finger-prints  on  her  throat,  and 
prints  of  teeth  on  her  left  arm  and  back  of  her  hands,  and  her  legs 
from  knees  down  were  lacerated  b}-  the  briers.  According  to  the  t-es- 
timony  of  a  physician,  she  was  eight  months  and  one  week  gone  in 
pregnancy  ;  but  she  had  no  Avound,  bruise,  or  other  mark  of  A'iolence 
that  could  have  produced  death.  He  also  testified  that  apijellant  was 
badly  crippled  and  paralyzed  in  one  arm,  and  that  on  the  da^-  of  his 
examining  trial  he  had  a  considerable  bruise  about  his  face  and  a  bad- 
looking  one  about  the  eye. 

There  is  evidence  that  the  deceased  was  a  high-tempered  woman, 
hard  to  get  along  with.  She  told  a  witness  of  fighting  and  whipping 
her  husband,  who  was  a  cripple,  and  had  but  one  arm  he  could  use, 
though  the  daughter  testifies  that  in  their  fights  he  whipped  her.  It 
further  appears  that  she  had  on  other  occasions  ran  off  and  left  her 
husband,  and  at  one  time  she  came  to  the  house  of  a  witness  and 
stayed  all  night,  leaving  a  young  bab}-  with  her  husband,  saying  to  the 
witness  that  she  had  got  mad  and  run  off. 

The  lower  court  refused  to  instruct  the  jurj",  at  the  instance  of 
appellant's  counsel,  that  before  finding  him  guiltv  they  must  believe 
the  death  of  his  wife  was  produced  by  him  alone  and  in  no  other  way  ; 
and  also  refused  to  instruct  that  in  order  to  convict  they  must  believe 
he  intentionally  exposed  her,  or  forced  her  to  expose  herself,  to  the 
cold  under  such  circumstances  that  her  death  would  be  the  probable 
and  natural  consequence  of  such  exposure,  and  that  she  died  from  such 
exposure  ;  but  in  lieu  of  those  asked  by  his  counsel,  gave  the  follow- 
ing :  "  If  the  jury  believe  .  .  .  that  the  defendant  ...  in  sudden  heat 
and  passion,  and  not  in  his  necessary  or  reasonably-  necessar}-  self- 
defence,  used  such  force  and  violence  towards  his  wife  as  to  cause  her 
to  leave  his  house  from  fear  of  death  or  great  bodily  harm  at  his  hands, 
and  from  exposure  to  cold  her  death  was  produced  by  the  said  act  of 
the  defendant,  they  should  find  him  guilt}'  of  manslaughter,"  etc. 

"  Forcing  a  person  to  do  an  act  which  causes  his  death  renders  the 
death  the  guilt}^  deed  of  him  who  compelled  the  deceased  to  do  the 
act ;  and  it  is  not  material  whether  the  force  be  applied  to  the  body  or 
to  the  mind  ;  but  if  it  were  the  latter,  it  must  be  shown  there  was  the 
apprehension  of  immediate  violence,  and  well-grounded  from  the  cir- 
cumstances b}'  which  the  deceased  was  surrounded.     And  it  need  not 


254  HENDRICKSON   V.    COMMONW^EALTH.  [cHAP.    III. 

appear  that  there  was  n6  other  wa}'  of  escape  ;  but  it  must  appear  that 

the  step  was' taken  to  avoid  the  threatened  danger,  and  was  such  as  a 
reasonal)le  man  might  take."  Russell  on  Crimes,  489;  3  Greenleaf 
on  Evidence,  section  142. 

In  a  case  wliere  the  evidence  was  that  the  defendant,  a  husband, 
heat  his  wife  and  tlireatened  to  thr<;vv  her  out  of  tiie  window  and  to 
murder  her,  and  tliat  b\-  such  tlireats  she  was  so  terrified  that,  through 
fear  of  his  putting  his  threats  into  execution,  she  threw  herself  out  of 
the  window,  and  of  the  beating  and  bruises  received  b^'  the  fall  she 
died,  it  was  lield  that  if  her  death  was  occasioned  partly  by  the  blows, 
and  partly  by  the  fall,  3'et  if  she  was  constrained  bv  her  husband's 
threats  of  further  violence,  and  from  a  well-grounded  apprehension  of 
his  doing  such  further  violence  as  would  endanger  her  life,  he  was 
answerable  for  the  consequences  of  the  fall  as  much  as  if  he  had 
thrown  her  out  of  the  window  himself.  And  in  anotlier  case,  where  the 
deceased,  from  a  well-grounded  a[)prehension  of  a  further  attacjv  which 
would  have  endangered  his  life,  endeavored  to  escape,  and  in  so  doing 
was  fatalh'  injured  from  anotlier  cause,  it  was  held  murder.  (See 
Wharton  on  Homicide,  section  374,  where  these  and  other  cases  are 
cited.) 

The  case  of  State  v.  Preslar,  3  N.  C.  421,  was  where,  after  the 
husband  had  desisted  from  beating  his  wife,  she  went  off  a  little 
distance  in  the  yaxA  and  sat  down,  and  the  husband,  after  about  five 
minutes,  went  into  the  house  and  laid  upon  the  bed  with  his  clothes 
on,  and  about  half  an  hour  afterwards  she  started,  in  compan}-  with 
her  son,  to  the  house  of  her  father,  about  two  miles  off;  but  when  she 
sot  within  two  hundred  vards  of  her  father's  house  she  said  she  did 
not  W'ish  to  go  there  until  morning,  it  being  in  the  night-time,  and  laid 
down  on  a  bed-quilt  in  the  woods.  Earl}'  next  morning  she  gave 
notice  to  the  inmates  of  the  house  of  her  presence,  but  was  not  able 
to  walk  there,  and  the  next  day  died.  In  that  case  the  gourt  decided 
that  as  she  had  exposed  herself  thus  without  necessity,  and  there  were, 
besides,  circumstances  showing  deliberation  in  leaving  her  home,  the 
husband  could  not  be  held  responsible  to  the  extent  of  forfeiting  his 
life.  But  the  court  at  the  same  time  said  that  "  if,  to  avoid  the  rage 
of  a  brutal  husband,  a  wife  is  compelled  to  expose  herself  by  wading 
through  a  swamp  or  jumping  into  a  river,  the  husband  is  responsible  for 
the  consequences." 

The  question  before  us  is,  whether,  tested  by  the  principles  stated 
and  illustrated,  the  instruction  quoted  correctly  and  full}'  embodies 
the  law  ai)plieable  to  this  case. 

It  will  be  perceived  that  the  jury  were  authorized,  by  the  instruction, 
to  convict,  if  they  believed  the  accused  used  such  force  and  violence  as 
to  cause  the  deceased  to  leave  the  house  from  fear  of  death  or  great 
bodily  harm  at  his  hands.  But  they  were  not  instructed,  as  they  should 
have  been  before  convicting,  to  believe,  nor  permitted  to  inquire, 
whether  or  not  such  fear  was  well  grounded  or  reasonable.     Tlie  jury 


SECT.    IV.]      SOUTH  SIDE  PASSENGER  RAILWAY  CO.  V.  TRICH.  ?55 

might,  and  from  their  verdict  doubtless  did,  believe  she  left  the  house 
from  fear  of  deatli  or  great  bodily  harm,  yet,  if  they  had  taken  into 
consideration  the  previous  conduct  of  the  deceased,  her  disposition  and 
ability  to  fight  with  her  husband,  their  cou^.i)arative  physical  powers, 
and  all  the  circumstances  proved  in  the  case,  they  might  not  have 
believed  her  fear  was  well  grounded  or  reasonable,  and  unless  it  was, 
the  accused  should  not  be  held  responsible  for  her  death,  for  in  such 
case  he  could  not  be  regarded  as  forcing  her  to  leave  the  house. 

The  jury  should  have  been  further  instructed  that,  to  convict,  they 
must  believe  the  death  of  the  wife  by  freezing  was  the  natural  and 
probable  consequence  of  leaving  the  house  at  the  time  and  under  the 
circumstances. 

There  is  no  evidence  the  accused  prevented  her  re-entrance  into  the 
house,  as  assumed  in  the  instruction  in  regard  to  murder,  and  it  was 
error  to  make  reference  thereto.  For  the  errors  indicated,  the  judg- 
ment is  reversed  for  a  new  trial,  and  other  proceedings  consisteut  with 
this  opinion. 


SOUTH  SIDE  PASSENGER  RAILWAY  CO.  v.  TRICH. 

Supreme  Court  of  Pennsylvania,  1887. 
[Reported  117  Pa.  390.] 

On  April  5,  1882,  Mrs.  Trich  and  her  father,  Mr.  John  W.  McCuUy, 
when  at  the  corner  of  Third  and  Smithfield  Streets,  Pittsburg,  hailed 
a  street  car  coming  up  Third  just  as  it  reached  Smithfield  Street.  The 
cars  in  use  were  what  are  commonly  called  "bob-tails,"  having  a 
driver  but  no  conductor,  with  an  ordinary  platform  and  rail  at  the 
rear  end,  approached  by  steps  on  either  side.  The  car  started  off  rapidly 
when  Mrs.  Trich  had  one  foot  on  the  platform  and  the  other  on  the 
step,  with  her  hand  holding  the  rail;  and  as  it  reached  the  middle  9f 
Smithfield,  Mrs.  Trich  not  yet  having  entered,  the  driver  whipped  up 
suddenly  to  avoid  a  collision  with  a  runaway  horse  and  carriage  seen  to 
be  coming  down  Smithfield.  The  abrupt  motion  communicated  to  the 
car  threw  Mrs.  Trich  from  the  platform,  and  just  as  she  alighted  she  was 
struck  by  the  runaway  and  severely  injured.^ 

Green,  J.  There  is  no  manner  of  question  as  to  what  was  the 
actual  and  immediate  cause  of  the  injury  inflicted  upon  Mrs.  Trich. 
It  was  an  entirely  undisputed  fact  that  she  was  striick  and  injured 
'  The  statement  of  evidence  is  omitted.  —  Ed. 


256  SOUTH  SIDE  PASSENGER  RAILWAY  CO.  l\  TRICH.       [cHAP.    III. 

by  a  runaway  horse  and  buggy.  All  the  witnesses  who  saw  the  occur- 
rence so  testify.  Thus,  Mr.  McCully,  the  father  of  Mrs.  Trich,  who 
was  present  with  her  at  the  time  and  was  examined  on  her  behalf, 
after  describing  her  attempt  to  get  on  the  car  and  sajnng  that  she  was 
bounced  off,  adds:  "A  moment  or  two  afterwards  here  comes  a  runa- 
way horse  and  buggy  down  the  street,  and  the  shaft,  I  suppose  it  was, 
caught  her  under  the  arm  and  dragged  her  to  the  street  crossing  and 
she  fell  away."  The  only  other  witness  examined  for  the  plaintiffs 
as  to  the  facts  of  the  occurrence,  M.  M.  Herrington,  testified:  "There 
is  a  banking  building  there  on  the  corner,  and  I  saw  the  lady  fall  —  fall 
off  —  and  when  she  fell,  to  the  best  of  my  knowledge  she  kind  of  threw 
herself  back  this  way  and  there  was  a  phaeton  or  buggy  of  some  kind 
running  —  a  horse  running  down  the  street  with  a  buggy  —  and  it 
struck  her,  and  they  picked  her  up  and  carried  her  into  Mr.  Johnson's 
drug  store."  There  was  no  contradiction  of  this  testimony.  But 
one  other  witness,  Mrs.  Vrailing,  examined  by  the  defendant,  testified 
to  the  fact  of  the  injury  and  she  also  said  it  was  done  by  the  buggy 
striking  the  woman. 

The  learned  court  below,  in  the  charge,  said :  "  The  e\ndence  seems  to 
me  to  preponderate  very  largely  in  favor  of  the  fact  that  the  immediate 
force  which  caused  the  injury  to  this  woman  was  the  runaway  horse." 
This  was  an  understatement  of  the  testimony  which  might  have  led 
the  jury  to  suppose  that  there  was  an  open  question,  with  a  prepon- 
derance of  evidence  only,  as  to  whether  it  was  the  runaway  horse  and 
buggy  which  inflicted  the  injury.  The  defendant  had  presented  a  point 
stating  that  it  was  the  undisputed  CAddence  that  Mrs.  Trich  was  in- 
jured by  being  struck  by  a  runaway  horse,  so  that  the  question  was 
directly,  before  the  court.  In  \new  of  that  circumstance  we  think  the 
court  should  have  specifically  so  charged  and  not  left  it  as  an  open 
question  for  the  jury  to  determine,  with  a  mere  expression  of  opinion 
that  the  e\idence  preponderated  in  that  direction. 

Assuming  then,  as  we  do,  that  it  was  the  undisputed  exidence  that 
the  injury  was  inflicted  by  the  runaway  horse  and  buggy,  the  only 
remaining  question  is  whether  it  was  the  duty  of  the  court  to  declare 
whether  this  was  the  proximate  cause  of  the  injury.  The  point  pre- 
sented by  the  defendant  asked  for  such  an  instruction,  but  the  court 
refused  it,  sa\'ing  it  was  a  question  for  the  jury  under  the  evidence- 
In  this  we  think  there  was  error.  In  the  case  of  West  Mahanoy  v. 
Watson,  112  Pa.  574,  we  reversed  the  court  below  for  making  just  such 
an  answer  to  just  such  a  point;  and  upon  a  re\dew  of  the  facts  of  the 
case  we  held  that  they  did  not  constitute  an  instance  of  proximate 
cause  as  against  the  defendant,  and  therefore  decided  that  the  defend- 
ant's point  should  have  been  affirmed,  wliich  took  the  case  from  the 
jury.  Mr.  Justice  Paxsoij,  in  delivering  the  opinion,  said :  "  While  it  is 
undoubtedly  true  as  a  general  proposition  that  the  question  of  proximate 
cause  is  for  the  jury,  yet  it  has  been  repeatedly  held  that  where  there 


SECT.    IV.]      SOUTH  SIDE  PASSENGER  RAILWAY  CO.  V.  TRICH. 


257 


are  no  disputed  facts  the  court  may  determine  it.  It  is  sufficient 
to  refer  to  Hoag  v.  The  Railroad  Co.,  85  Pa.  293.  In  that  case  this 
court,  following  Railroad  v.  Kerr,  62  Pa.  353,  and  Railroad  Co.  v. 
Hope,  30  Pa.  373,  laid  down  the  rule  as  to  proximate  cause  as  follows: 
"In  determining  what  is  proximate  cause  the  true  rule  is  that  the 
injury  must  be  the  natural  and  probable  consequence  of  the  negligence; 
such  a  consequence  as  under  the  surrounding  circumstances  of  the 
case  might  and  ought  to  have  been  foreseen  by  the  wrongdoer  as 
likely  to  flow  from  his  act." 

Applying  this  rule  to  the  facts  of  the  present  case,  can  it  be  said  that 
the  injury  of  Mrs.  Trich  was  the  natural- and  probable  consequence 
of  the  car  driver's  negligence  in  urging  his  horses  to  a  faster  gait? 
We  think  not.  There  was  not  a  particle  of  evidence  to  show  that 
runaway  horses  and  vehicles  were  frequently,  or  indeed  ever,  seen  upon 
Smithfield  Street  where  this  accident  occurred.  There  was  no  evidence 
upon  that  subject.  It  was  certainly  not  a  natural  consequence  of  a  per- 
son being  upon  that  street  that  he  would  be  struck  by  a  runaway  horse. 
Nor  is  there  the  slightest  reason  for  sa;y'ing  that  it  would  be  a  probable 
consequence.  The  utmost  that  can  be  said  would  be,  that  such  a 
consequence  might  possibly  happen.  But  things  or  results  which  are 
only  possible  cannot  be  spoken  of  as  either  probable  or  natural.  For 
the  latter  are  those  tilings  or  events  which  are  likely  to  happen  and 
which  for  that  reason  should  be  foreseen.  Things  which  are  possible 
may  never  happen,  but  those  which  are  natural  or  probable  are  those 
which  do  happen,  and  happen  with  such  frequency  or  regularity  as  to 
become  a  matter  of  definite  inference.  To  impose  such  a  standard 
of  care  as  requires,  in  tlie  ordinary  affairs  of  life,  precaution  on  the 
part  of  indi\dduals  against  all  the  possibilities  which  may  occur,  is 
establishing  a  degree  of  responsibility  quite  beyond  any  legal  limitations 
which  have  yet  been  declared.  We  are  of  opinion  that  in  the  facts  of 
the  present  case  the  direct  and  immediately  producing  cause  of  Mrs. 
Trich's  injury  was  her  being  struck  by  a  runaway  horse  and  buggy  over 
which  the  defendant  company  had  no  sort  of  control  and  for  which  it  is 
not  responsible;  and  therefore  we  conclude  that  the  proximate  cause  of 
the  injury  in  the  legal  sense,  was  the  collision  of  the  horse  and  buggy 
with  the  person  of  Mrs.  Trich  and  not  the  negligence  of  the  defendant. 

The  case  of  West  Mahanoy  v.  Watson  came  again  into  this  court  and 
is  reported  in  116  Pa.  344.  The  present  Chief  Justice,  in  delivering  the 
opinion  of  the  court,  said:  "These  facts  narrow  the  case  down  to  the 
single  question,  was  the  upset  at  the  ash-heap  on  the  township  road  the 
immediate  or  direct  cause  of  the  loss  of  the  horses?  As  we  have  seen, 
the  facts  themselves  answer  this  interrogatory  in  the  negative  and 
necessarily  determine  the  case  in  favor  of  the  plaintiff  in  error.  In  the 
case  of  Hoag  v.  Michigan  Southern  &  Lake  Shore  Railroad  Co.,  85  Pa. 
293,  Mr.  Justice  Trunkey,  then  president  of  the  Common  Pleas  of  Ven- 
ango County,  in  his  charge  to  the  jury  on  the  trial  of  the  above-named 


258  ISIIAJM    l\    DOW.  [chap.    III. 

cause,  said:  'The  immediate  and  not  the  remote  cause  is  to  be  consid- 
ered. This  maxim  is  not  to  be  controlled  by  time  or  distance,  but  by 
the  succession  of  events.  The  question  is,  did  the  cause  alleged  pro- 
duce its  effect  without  another  cause  intervening,  or  was  it  to  operate 
through  or  by  means  of  this  intervening  cause?'  As  the  principle 
here  stated  was  adopted  by  the  affirmance  of  this  court  following  Penn- 
sylvania Railroad  v.  Kerr,  62  Pa.  353,  we  may  regard  it  as  the  settled 
law  of  this  State." 

In  the  facts  of  the  present  case  we  find  a  perfect  illustration  of  this 
principle.  Mrs.  Trich  herself  testified  that  when  she  was  "bounced" 
from  the  car  she  fell  on  her  feet.  Immediately  after,  she  was  struck 
by  the  runaway  horse  and  buggy  and  from  them  received  her  injury. 
The  jolting  from  the  car  simply  landed  her  on  her  feet  and  inflicted  no 
injury.  But  another  agency  intervened,  which  was  entirely  independ- 
ent of  any  act  of  the  defendant,  and  that  agency  alone  inflicted  the 
injury  in  question.  Following  the  doctrine  of  the  last  case  cited  we 
feel  clearly  obliged  to  hold  that  the  plaintift''s  injury  was  inflicted  by 
the  special  intervening  agency  stated,  and  therefore  the  defendant  -is 
not  liable.  In  all  the  cases  cited,  as  in  several  others  not  referred  to, 
this  court  finally  determined  them  upon  its  own  view  of  the  facts  with- 
out regard  to  the  verdicts  of  the  juries.  The  defendant's  point  should 
have  been  affirmed. 

Judgment  reversed. 


ISHAM  V.   DOW. 
Supreme  Court  of  Vermont,  1898. 

[Reported  70  T'/.  r)SS.] 

RowELL,  J.  Dow,  the  intestate,  a  poor  gunner,  as  he  knew,  with 
eyesight  much  impaired,  knowing  that  the  plaintiff  and  her  children 
were  alone  in  her  husband's  house,  unlawfully,  wantonly,  and  malici- 
ously shot  at  and  wounded  her  husband's  dog,  lying  peaceably  in  close 
proximity  to  the  house  on  the  land  of  a  third  person,  whereupon  the 
dog  sprang  up,  rushed  ^\^ldly  and  rapidly  towards  the  house,  entered 
it  through  an  open  door  into  the  room  where  the  plaintiff  was,  ran  vio- 
lently and  forcibly  against  her,  knocking  her  down  and  injuring  her; 
and  the  question  is,  whether  the  estate  is  liable  for  it. 

The  defendant  says  that  in  order  to  recover  the  plaintiff  must  es- 
tablish two  things,  namely,  negligence  on  the  part  of  Dow,  and  that 


SECT.    IV.]  ISHAM   V.    DOW.  259 

her  injury  resulted  proximately  therefrom,  and  that  the  case  shows 
neither,  as  it  does  not  show  that  Dow  owed  her  any  legal  duty,  nor 
that  his  act  was  the  proximate  cause  of  the  injury. 

But  we  cannot  adopt  this  \'iew.  The  intestate  unlawfully,  wantonly, 
and  maliciously  shot  at  the  dog,  intending,  we  will  assume,  to  kill  it, 
but  not  knowing  whether  he  would  or  not,  and  not  knowing  what 
would  happen  if  he  did  not,  and  by  his  wanton  act  the  dog  was  set  wildly 
in  motion,  and  that  motion,  thus  caused,  continued,  without  the  inter- 
vention of  any  other  agency,  and  without  power  on  his  part  to  control 
it,  until  the  plaintiff's  injury  resulted  therefrom.  In  these  circum- 
stances the  law  treats  the  act  of  the  intestate  as  the  proximate  cause  of 
the  injury,  whether  the  injury  was,  or  could  have  been,  foreseen  or  not, 
or  was  or  not  the  probable  consequence  of  the  act,  for  the  necessary 
relation  of  cause  and  effect  between  the  act  and  the  injury  is  established 
by  the  continuous  and  connected  succession  of  the  intervening  events. 

This  is  the  universal  rule  when  the  injurious  act  is  wanton.  In 
16  Am.  and  Eng.  Ency.  of  Law,  434,  the  true  principle  is  said  to  be, 
that  he  who  does  such  an  act  is  liable  for  all  the  consequences,  however 
remote,  because  the  act  is  quasi  criminal  in  its  character,  and  the  law 
conclusively  presumes  that  all  the  consequences  were  foreseen  and 
intended.  But  it  is  not  necessary  in  this  State,  certainly,  that  the  act 
should  be  wanton  in  order  to  impose  liability  for  all  the  injurious 
consequences.  If  it  is  voluntary  and  not  obligatory  it  is  enough.  In 
Vincent  v.  Stinehour,  7  Vt.,  at  p.  66,  it  is  said  that  for  such  an  act  the 
doer  is  answerable  for  any  injury  that  may  happen  by  reason  thereof, 
whether  by  accident  or  carelessness.  In  Wright  v.  Clark,  50  Vt.  130, 
the  defendant  shot  at  a  fox— that  the  plaintiff's  dog  had  driven  to 
cover,  and  accidentally  hit  the  dog,  and  he  was  held  liable,  because 
the  shooting  at  the  fox  was  voluntary,  and  furnished  no  excuse  for 
hitting  the  dog,  though  he  did  not  intend  to  hit  him.  The  same  rule 
was  applied  at  riisi  prius  without  exception  in  Taylor  v.  Hayes,  63 
Vt.  475,  where  the  defendant  shot  at  a  partridge  and  accidentally  hit 
a  cow.  So  in  Bradley  v.  Andrews,  51  Vt.  530,  the  defendant  voluntarily 
discharged  an  explosive  missile  into  a  crowd  and  hurt  the  plaintiff,  and 
it  was  held  that, 'as  the  act  was  voluntary  and  wTongful,  the  defendant 
was  liable,  and  that  his  youth  and  inexperience  did  not  excuse  him. 

The  rule  is  the  same  here  in  negligence  cases,  and  may  be  formulated 
thus:  When  negligence  is  established,  it  imposes  liability  for  all  the 
injurious  consequences  that  flow  therefrom,  whatever  they  are,  until 
the  intervention  of  some  diverting  force  that  makes  the  injury  its  own, 
or  until  the  force  set  in  motion  by  the  negligent  act  has  so  far  spent 
itself  as  to  be  too  small  for  the  law's  notice.  But  in  administering  this 
rule,  care  must  be  taken  to  distinguish  between  w'hat  is  negligence  and 
what  the  liability  for  its  injurious  consequences.  On  the  question  of 
what  is  negligence,  it  is  material  to  consider  what  a  prudent  man  might 
reasonably   havt^   anticipnted;    but   when    negligence    is   once   estab- 


260  iSHAJVi  V.  DOW.  [chap.  III. 

lished,  that  consideration  is  entirely  immaterial  on  the  question  of  how 
far  that  negligence  imposes  liability.  This  is  all  well  shown  by  Stevens 
V.  Dudley,  56  Vt.  15S,  and  Gilson  v.  The  Delaware  &  Hudson  Canal  Co., 
65  Vt.  213.  The  rule  is  the  same  in  England,  as  will  be  seen  by  referring 
to  the  leading  case  of  Smith  v.  The  London  &  South-Western  Railway 
Co.,  L.  R.  6  C.  P.  14,  in  the  Exchequer  Chamber.  In  Sneesby  v.  The 
Lancashire  &  Yorkshire  Railway  Co.,  L.  R.  1  Q.  B.  D.  42,  a  herd  of 
plaintiff's  cattle  were  being  driven  along  an  occupation  road  to  some 
fields.  The  road  crossed  a  siding  of  the  defendant's  railway  on  a  level, 
and  when  the  cattle  were  crossing  the  siding  the  defendant's  servants 
negligently  sent  some  trucks  down  the  siding  amongst  them,  which 
separated  them  from  the  drovers  and  so  frightened  them  that  a  few 
rushed  away  from  the  control  of  the  drovers,  fled  along  the  occupation 
road  to  a  garden  some  distance  off,  got  into  the  garden  through  a  defec- 
tive fence,  and  thence  on  to  another  track  of  the  defendant's  railway 
and  were  killed ;  and  the  question  was  whether  their  death  was  not  too 
remote  from  the  negligence  to  impose  liability.  The  court  said  that 
the  result  of  the  negligence  was  twofold :  first,  that  the  trucks  separated 
the  cattle,  and  second,  that  the  cattle  were  frightened  and  became 
infuriated  and  were  driven  to  act  as  they  would  not  have  done  in  their 
natural  state;  that  everything  that  occurred  or  was  done  after  that 
must  be  taken  to  have  occurred  or  been  done  continuously;  and  that 
it  was  no  answer  to  say  that  the  fence  was  imperfect,  for  the  question 
would  have  been  the  same  had  there  been  no  fence  there.  Then  lia- 
bility was  made  to  depend  not  on  the  nearness  of  the  wrongful  act,  but 
on  the  want  of  power  to  divert  or  avert  its  consequences;  and  it  con- 
tinued until  the  first  impulse  spent  itself  in  the  death  of  the  cattle. 
See  Ricker  v.  P>eeman,  50  N.  H.  420;  9  Am.  Rep.  267;  Alabama,  etc., 
R.  R.  Co.   V.  Chapman,  80  Ala.  615. 

Ellis  V.  Cleveland,  55  Vt.  358,  is  not  in  conflict  with  the  Vermont 
cases  above  cited,  as  is  supposed,  for  there  there  was  no  casual  connec- 
tion between  the  wrongfid  act  and  the  injury  complained  of,  and  so 
there  could  be  no  recovery.  As  illustrative  of  non-liability  for  damage 
flowing  from  an  intermediate  and  independent  cause  operating  between 
the  wTongfuI  act  and  the  injury,  see  Holmes  v.  Fuller,  68  Vt.  207. 

Ryan  v.  The  New  York  Central  R.  R.  Co.,  35  N.  Y.  210,  is  relied  on 
by  the  defendant.  The  Pennsylvania  R.  R.  Co.  v.  Kerr,  62  Pa.  St.  353, 
is  a  similar  case.  It  is  said  in  Milwaukee,  etc.,  R.  R.  Co.  i".  Kellogg, 
94  \J.  S.,  at  p.  474,  that  these  cases  have  been  much  criticised;  that  if 
they  were  intended  to  hold  that  when  a  building  has  been  negligently 
set  on  fire,  and  a  second  building  is  fired  from  the  first,  it  is,  a  conclu- 
sion of  law  that  the  owner  of  the  second  has  no  remedy  against  the 
negligent  wrongdoer,  they  have  not  been  accepted  as  authority  for 
such  a  doctrine  even  in  the  State  where  they  were  made,  and  are  in 
conflict  with  numerous  cases  in  other  jurisdictions.  Judge  Redfield 
says  in  13  Am.  Law  Reg.  N.  S.  16,  that  these  cases  have  not  been  coun- 


SECT.    IV.]  TOWALIGER    FALLS   POWER   CO.    V.    SBIS.  261 

tenanced  by  the  decisions  in  other  States.  And  Judge  Cooley  says 
that  a  different  view  prevails  in  England  and  most  of  the  American 
States;  that  the  negligent  fire  is  regarded  as  a  unity;  that  it  reaches 
the  last  building  as  a  direct  and  proximate  result  of  the  original  neg- 
ligence, just  as  a  rolling  stone  put  in  motion  down  a  hill,  injuring  several 
persons  in  succession,  inflicts  the  last  injury  as  a  proximate  result  of 
the  original  force  as  directly  as  it  does  the  first,  though  if  it  had  been 
stopped  on  the  way  and  started  again  by  another  person,  a  new  cause 
would  thus  have  intervened,  back  of  which  any  subsequent  injury  could 
not  be  traced;  that  proximity  of  cause  has  no  necessary  connection 
with  contiguity  of  space  nor  nearness  of  time.  Cooley  on  Torts 
(1st  ed.),  76. 

Judgment  reversed  and  cause  remanded. 


TOWALIGER   FALLS    POWER    CO.    v.    SIMS. 
Court  of  Appeals,  Georgia,  1909. 

[Reported  6  Ga.  A  pp.  749.] 

Powell,  J.  Sims  sued  the  Towaliger  Falls  Paper  Company,  al- 
leging that  during  the  year  1906  he  was  a  tenant  residing  on  certain 
lands  in  Monroe  County,  that  the  defendant  built  a  high  dam  across 
the  Towaliger  River,  some  distance  below  his  residence,  and  backed 
a  large  body  of  water  on  and  over  a  great  area  of  land  near  his  home; 
that  the  land  so  submerged  was  covered  with  trees  and  other  vegeta- 
tion; that  the  ponding  of  this  water  and  the  submerging  of  the  vege- 
tation caused  malaria.  .  .  .  By  amendment  he  set  up  .  .  .  that  mos- 
quitoes which  were  bred  in  the  pond,  and  which  had  not  pre^'iously 
infested  it,  became  a  medium  for  the  transmission  of  malaria,  and  did 
transmit  it  to  himself  and  his  family,  causing  them  to  have  malarial 
fever,  which  they  otherwise  would  not  have  had.  He  prayed  for  dam- 
ages on  account  of  the  injury  to  the  use  of  his  premises,  on  account  of 
his  own  sickness,  pain,  and  suffering,  on  account  of  the  loss  of  the 
services  of  his  wife  and  minor  children,  and  on  account  of  expenses  in- 
curred in  connection  therewith.^ 

One  of  the  contentions  of  the  plaintiff  in  error  is  that  if,  as  the 
testimony  of  the  expert  \\itnesses  strongly  indicated,  the  malarial 
fever  wdth  which  the  plaintiff  and  his  family,  according  to  his  testi- 
mony, suffered  was  produced  in  them  by  the  bite  of  a  particular  kind 
of  mosquito,  which  was  harmless  and  incapable  of  carrying  the  disease 
unless  it  had  first  bitten  some  other  human  being  already  infected  with 
malaria,  the  relation  between  the  maintenance  of  the  pond,  even  though 

^  Only  so  much  of  the  opinion  as  discusses  this  amendment  is  given.  —  Ed. 


262  STONE   V.    BOSTON   &    ALBANY    R.\ILROAD    CO.     [ciL\P.    III. 

it  afPorded  a  place  for  the  breeding  of  the  mosquitoes,  and  the  final 
communication  of  the  disease  to  the  plaintiff,  was  too  remote.  Counsel 
ingeniously  and,  we  suspect,  somewhat  facetiously,  argue  that  the  mos- 
quito is  an  animal  feroe  naturae,  and  that  in  an  action  for  damages 
done  by  a  dangerous  animal,  scienter  on  the  part  of  the  person  harboring 
it  is  a  necessary  allegation;  citing  Cox  v.  Murphey,  82  Ga.  623  (9  S.  E. 
604),  and  Clarendon  v.  McClelland,  89  Tex.  483  (31  L.  R.  A.  669, 
59  Am.  St.  70,  34  S.  W.  98,  35  S.  W.  474).  Without  making  any  specific 
classification  of  mosquitoes,  we  hold  that  they  are  a  common  pest,  and 
that  the  maintenance  of  a  place  where  they  breed  in  unusual  numbers  is 
such  a  menace  to  persons  residing  nearby  as  to  make  that  place 
ordinarily  a  nuisance;  and  that  if,  as  a  result  of  the  maintenance 
of  such  a  place,  the  mosquitoes  do  in  fact  breed  there,  as  they  other- 
wise would  not  have  bred,  and  become  inoculated  with  malaria,  and, 
in  accordance  with  what  is  naturally  to  be  expected,  fly  abroad  and 
communicate  malarial  fevers,  the  proprietor  of  the  breeding  place  is, 
in  legal  contemplation,  proximately  the  author  of  the  damage. 


STONE  V.   BOSTON  &  ALBANY  RAILROAD  CO. 
Supreme  Judicial  Court  of  Massachusetts,  1898. 

[Reported  171  Mass.  536.] 

Allen,  J.  This  is  an  action  of  tort  to  recover  for  the  loss  of  the 
plaintiff's  buildings  and  other  property  by  fire,  under  the  following  cir- 
cumstances. The  defendant  owned  and  operated  a  branch  railroad 
extending  from  its  main  line  at  South  Spencer  to  the  \allage  of  Spencer, 
and  had  at  the  Spencer  terminus  a  passenger  station,  a  freight  house, 
and  a  freight  yard,  all  adjoining  a  public  street.  On  the  side  of  the 
freight  house,  and  extending  beyond  it  about  seventy-five  feet,  was  a 
wooden  platform  about  eight  feet  wide  and  four  feet  high,  placed  upon 
posts  set  in  the  gi-ound,  the  under  side  being  left  open  and  exposed. 
The  main  tracks  ran  along  on  the  front  side  of  this  platform  and  freight 
house,  and  on  the  rear  of  the  platform  there  was  a  freight  track,  so 
near  as  to  be  convenient  to  load  and  unload  cars  from  and  upon  it. 
The  plaintiff  was  engaged  in  the  lumber  business,  buiying  at  wholesale, 
and  selling  at  wholesale  and  retail,  manufacturing  boxes,  etc.  His  place 
of  business  comprised  several  buildings,  some  of  which  were  across 
the  street  from  the  defendant's  buildings;  and  his  principal  buildings 
were  about  seventy-five  feet  from  the  place  on  the  defendant's  premises, 
beneath  the  platform,  where  the  fire  originated.  The  e\adence  tended  to 
show  that  the  platform  was  mostly  used  for  the  storing  of  oil  which  had 
been  brought  upon  the  railroad,  until  it  was  taken  away  by  the  con- 
signees ;  and  that  the  platform  had  become  thoroughly  saturated  unth 
oil  which  had  leaked  from  the  barrels,  and  which  not  only  saturated  the 


SECT.    IV.j  STONE   V.    BOSTON    &    ALBANY   KA.ILRO.U)    CO.  263 

platform  but  dripped  to  the  ground  beneath.  More  or  less  rubbish 
accumulated  from  time  to  time  under  the  platform,  and  was  occasion- 
ally carried  away.  The  evidence  tended  to  show  that  this  space  below 
had  been  cleaned  out  two  or  three  weeks  before  the  fire.  On  the  day 
of  the  fire,  September  13,  1893,  from  twenty-five  to  thirty  barrels 
of  oil  and  oil  barrels  were  upon  the  platform.  Some  were  nearly 
or  quite  empty,  some  were  partly  full,  but  most  of  them  were  probably 
full  or  nearly  full.  The  only  exndence  to  show  how  the  fire  originated 
tended  to  prove  that  one  Casserly,  a  teamster,  brought  a  load  of  boots 
to  be  shipped  upon  a  car  which  was  standing  upon  the  track  on  the 
rear  side  of  the  platform;  that  he  was  smoking  a  pipe;  that  he  stepped 
into  the  car  to  wait  for  the  defendant's  foreman  of  the  yard,  who  was 
to  help  him  unload  the  boots;  that  in  stepping  in  he  stubbed  his  toe 
and  knocked  some  of  the  ashes  and  tobacco  out  of  his  pipe;  that  he  re- 
lighted the  pipe  with  a  match,  and  threw  the  match  down;  and  that 
at  this  time  he  was  standing  in  the  door  of  the  car,  facing  the  platform. 
It  must  be  assumed,  upon  the  evidence,  that  the  fire  caught  upon  the 
ground  underneath  the  platform  from  the  match  thrown  down  by  Cas- 
serly. All  efforts  to  extinguish  the  fire  failed;  it  spread  fast  and  was 
almost  immediately  upon  the  top  of  the  platform,  running  up  a  post 
according  to  one  of  the  witnesses,  and  very  soon  it  reached  the  barrels 
of  oil,  which  began  to  explode,  and  the  fire  communicated  to  the 
plaintiff's  buildings,  and  they  were  burned.  There  was  e\adence 
tending  to  show  that  all  of  the  oil  had  been  upon  the  platform  for  a 
longer  time  than  forty-eight  hours.  According  to  the  testimony  of 
the  plaintiff,  the  platform  was  never  to  his  knowledge  empty  of  oil 
and  oil  barrels,  it  was  completely  saturated  with  oil,  and  that  general 
condition  of  things,  so  far  as  the  platform  was  concerned,  had  existed 
for  eight  years,  ever  since  he  himself  had  been  there.  Upon  the  e\n- 
dence  introduced  by  the  plaintiff,  the  court  directed  a  verdict  for  the 
defendant. 

The  plaintiff  in  substance  contends  before  us  that  the  defendant 
was  negligent  in  storing  oil  upon  the  platform,  taking  into  consideration 
the  condition  of  the  platform  and  of  the  ground  and  material  under  it, 
and  the  length  of  time  during  which  the  oil  had  been  allowed  to  remain 
there;  that,  irrespectively  of  the  question  of  negligence,  the  platform 
with  the  oil  upon  it  constituted  a  public  nuisance,  especially  in  \aew 
of  Pub.  Sts.  c.  102,  §  74,  proxdding  that  oil  composed  wholly  or  in  part 
of  any  of  the  products  of  petroleum  shall  not  be  allowed  to  remain  on 
the  grounds  of  a  railroad  corporation  in  a  town  for  a  longer  time  than 
forty-eight  hours,  without  a  special  permit  from  the  selectmen;  that 
the  defendant  is  responsible  for  the  damage  resulting  from  the  public 
nuisance,  whether  the  act  of  starting  the  fire  was  due  to  a  third  person 
or  not;  and  that  the  question  should  have  been  submitted  to  the  jury 
whether  the  damage  to  the  plaintiff's  property  was  the  natural  and  prox- 
imate consequence  of  the  defendant's  tort. 


264  STONE    i\    BOSTON    &    ALBANY    liAILROAD    CO.     [CTIAP.    III. 

Upon  the  e\adence,  the  supposed  tort  of  the  defendant,  whether 
it  be  called  negligence  or  nuisance,  appears  to  have  been  limited  to  the 
keeping  of  oil  too  long  upon  the  platform.  Assuming  this  oil  to  have 
been  a  product  of  petroleum,  and  so  within  the  statute  cited,  neverthe- 
less the  defendant  as  a  common  carrier  was  bound  to  transport  it,  and 
deliver  it  to  the  consignees.  The  oil,  as  is  well  known,  was  an  article 
of  commerce  and  in  extensive  use,  and  the  defendant  was  bound 
to  transport  it  and  to  keep  it  for  a  reasonable  time  after  its  arrival 
in  Spencer,  in  readiness  for  delivery.  There  was  no  evidence  that  the 
oil  was  liable  to  spontaneous  ignition,  or  that  the  platform  was  an  un- 
suitable place  for  its  temporary  storage  till  it  could  be  removed,  or 
that  the  defendant  could  have  prevented  the  escape  of  oil  upon  the 
platform  from  leaky  barrels.  But  we  may  assume  without  discussion 
that  the  defendant  was  in  fault  in  keeping  the  oil  there  so  long,  and  that 
if  the  oil  had  been  removed  witliin  forty-eight  hours  after  its  arrival  the 
fire  would  probably  not  have  been  attended  with  such  disastrous  con- 
sequences. 

Nevertheless  the  question  remains,  and  in  our  view  this  becomes  the 
important  and  decisive  question  of  the  case,  whether,  assuming  that  the 
defendant  was  thus  in  fault,  the  plaintiflF  introduced  any  e\'idence 
which  would  warrant  a  finding  by  the  jury  that  the  damage  to  his  prop- 
erty was  a  consequence  for  which  the  defendant  is  responsible;  or,  in 
other  words,  whether  the  act  of  Casserly  in  starting  the  fire  was  such 
a  consequence  of  the  defendant's  original  wrong  in  allowing  the  oil  to 
remain  upon  the  platform  that  the  defendant  is  responsible  to  the  plain- 
tiff for  it. 

In  approaching  this  question,  it  must  be  borne  in  mind  that  Casserly 
was  in  no  sense  a  servant,  agent,  or  guest  of  the  defendant.  He  brought 
a  load  of  goods  to  the  defendant's  station  to  be  carried  upon  the  de- 
fendant's railroad.  The  defendant  was  bound  by  law  to  accept  and 
carry  them.  It  could  not  lawfully  exclude  Casserly  from  its  grounds. 
By  Pub.  Sts.  c.  112,  §  1S8,  it  was  bound  to  give  all  persons  reasonable 
and  equal  terms,  facilities,  and  accommodations  for  the  transportation 
of  merchandise  upon  its  railroad,  and  for  the  use  of  its  depot  and  other 
buildings  and  grounds.  Casserly  came  there  in  his  own  right,  and  the 
defendant  is  not  responsible  for  him  in  the  same  way  that  perhaps 
it  might  be  responsible  for  a  servant,  agent,  or,  according  to  some 
statements  of  the  law,  guest.  Lothrop  v.  Thayer,  138  Mass.  466. 
It  is  also  to  be  borne  in  mind  that  this  was  not  a  case  of  spontaneous 
ignition  of  a  substance  liable  to  ignite  spontaneously,  as  was  the  case 
in  Vaughan  v.  Menlove,  3  Bing.  N.  C.  468.  Nor  did  the  defendant  owe 
to  the  plaintiff  the  duties  of  a  carrier  of  passengers  or  freight  towards  its 
customers,  or  any  other  duties  growing  out  of  a  contract  with  the  plain- 
tiff. There  was  no  contract  of  any  kind  between  the  plaintiff  and  the 
defendant. 

The  rule  is  very  often  stated  that  in  law  the  proximate  and  not  the 


SECT.    IV.]"     STONE    L\    BOSTON    &    ALBANY    RAILROAD    CO.  285 

remote  cause  is  to  be  regarded ;  and  in  applying  this  rule  it  is  sometimes 
said  that  the  law  will  not  look  back  from  the  injurious  consequence 
beyond  the  last  sufficient  cause,  and  especially  that  where  an  intelligent 
and  responsible  human  being  has  intervened  between  the  original  cause 
and  the  resulting  damage,  the  law  will  not  look  back  beyond  him.  This 
ground  of  exonerating  an  original  wrongdoer  may  be  found  discussed 
or  suggested  in  the  following  decisions  and  text-books,  amongst  others: 
Clifford  V.  Atlantic  Cotton  Mills,  146  Mass.  47;  Elmer  v.  Fessenden, 
151  Mass.  359;  Hayes  v.  Hyde  Park,  153  Mass.  514;  Freeman  v. 
Mercantile  Accident  Association,  156  Mass.  351;  Lynn  Gas  &  Electric 
Co.  V.  Meriden  Ins.  Co.,  158  Mass.  570;  Mutual  Ins.  Co.  v.  Tweed, 
7  Wall.  44;  Milwaukee  &  St.  Paul  Railway  v.  Kellogg,  94  U.  S.  469; 
Washington  &  Georgetown  Railroad  v.  Hickey,  166  U.  S.  521;  Reiper 
V.  Nichols,  31  Hun,  491;  Mars  v.  Delaware  &  Hudson  Canal,  54  Hun, 
625;  Read  v.  Nichols,  118  N.  Y.  224;  Lea\att  v.  Bangor  &  Aroostook 
Railroad,  89  Maine,  509;  Cuff  v.  Newark  &  New  York  Railroad,  6 
Vroom,  17;  Delaware,  Lackawanna  &  Western  Railroad  v.  Salmon, 
10  Vroom,  299;  Curtin  v.  Somerset,  140  Penn.  St.  70;  Pennsylvania 
Co.  V.  Whitlock,  99  Ind.  16;  Goodlander  Mill  Co.  v.  Standard  Oil  Co., 
63  Fed.  Rep.  400,  405;  Shearman,  Negl.  §§  38,  666;  Whart.  Negl. 
§§  134  et  seq. 

It  cannot,  however,  be  considered  that  in  all  cases  the  intervention 
even  of  a  responsible  and  intelligent  human  being  will  absolutely  exon- 
erate a  preceding  wrongdoer.  Many  instances  to  the  contrary  have 
occurred,  and  these  are  usually  cases  where  it  has  been  found  that  it 
was  the  duty  of  the  original  wrongdoer  to  anticipate  and  pro\ide 
against  such  intervention,  because  such  intervention  was  a  thing  likely 
to  happen  in  the  ordinary  course  of  events.  Such  was  the  case  of  Lane 
V.  Atlantic  Works,  111  Mass.  136,  where  it  was  found  by  the  jury  that 
the  meddling  of  young  boys  with  a  loaded  truck  left  in  a  public  street 
was  an  act  which  the  defendants  ought  to  have  apprehended  and  pro- 
vided against,  and  the  verdict  for  the  plaintiffs  was  allowed  to  stand. 
In  the  carefully  expressed  opinion  by  Mr.  Justice  Colt  the  court 
say:  "In  actions  of  this  description,  the  defendant  is  liable  for  the 
natural  and  probable  consequences  of  his  negligent  act  or  omission. 
The  injury  must  be  the  direct  result  of  the  misconduct  charged;  but 
it  will  not  be  considered  too  remote  if,  according  to  the  usual  experience 
of  mankind,  the  result  ought  to  have  been  apprehended.  The  act  of 
a  third  person,  intervening  and  contributing  a  condition  necessary  to 
the  injurious  effect  of  the  original  negligence,  will  not  excuse  the  first 
wrongdoer,  if  such  act  ought  to  have  been  foreseen.  The  original  neg- 
ligence still  remains  a  culpable  and  direct  cause  of  the  injury.  The  test 
is  to  be  found  in  the  probable  injurious  consequences  which  were  to 
be  anticipated,  not  in  the  number  of  subsequent  events  and  agencies 
which  might  arise."  According  to  this  statement  of  the  law,  the  ques- 
tions in  the  present  case  are,  W^as  the  starting  of  the  fire  by  Casserly 


266  STONE   V.    BOSTON   &    ALBANY   RAILROAD    CO.     [cHAP.    III. 

the  natural  and  probable  consequence  of  the  defendant's  negligent 
act  in  leaving  the  oil  upon  the  platform?  According  to  the  usual  ex- 
perience of  mankind,  ought  this  result  to  have  been  apprehended? 
The  question  is  not  whether  it  was  a  possible  consequence,  but  whether 
it  was  probable,  that  is,  likely  to  occur,  according  to  the  usual  expe- 
rience of  mankind.  That  this  is  the  true  test  of  responsil)ility  appli- 
cable to  a  case  like  this  has  been  held  in  very  many  cases,  according 
to  which  a  wrongdoer  is  not  responsible  for  a  consequence  which  is 
merely  possible,  according  to  occasional  experience,  but  only  for  a 
consequence  which  is  probable,  according  to  ordinary  and  usual 
experience.  One  is  bound  to  anticipate  and  provide  against  what 
usually  happens  and  what  is  likely  to  happen;  but  it  would  impose 
too  heavy  a  responsibility  to  hold  him  bound  in  like  manner  to  guard 
against  what  is  unusual  and  unlikely  to  happen,  or  what,  as  it  is  some- 
times said,  is  only  remotely  and  slightly  probable.  A  high  degree  of 
caution  might,  and  perhaps  would,  guard  against  injurious  consequences 
which  are  merely  possible;  but  it  is  not  negligence,  in  a  legal  sense,  to 
omit  to  do  so. 

There  may  not  always  have  been  entire  consistency  in  the  applica- 
tion of  this  doctrine;  but,  in  addition  to  cases  of  boys  meddling  with 
things  left  in  a  public  street,  courts  have  also  held  it  competent  for 
a  jury  to  find  that  the  injury  was  probable,  although  brought  about 
by  a  new  agency,  when  heavy  articles  left  near  an  opening  in  the  floor 
of  an  unfinished  building,  or  in  the  deck  of  a  vessel,  were  accidentally 
jostled  so  that  they  fell  upon  persons  below;  McCauley  v.  Norcross, 
155  Mass.  584;  The  Joseph  B.  Thomas,  81  Fed.  Rep.  578;  when  sheep, 
allowed  to  escape  from  a  pasture  and  stray  away  in  a  region  frequented 
by  bears,  were  killed  by  the  bears;  Gilman  v.  Noyes,  57  N.  H.  627;  and 
when  a  candle  or  match  was  lighted  by  a  person  in  search  of  a  gas  leak, 
with  a  \aew  to  stop  the  escape  of  gas;  Koelsch  v.  Philadelphia  Co.,  152 
Penn.  St.  355;  and  in  other  cases  not  necessary  to  be  specially  referred 
to.  In  all  of  these  cases,  the  real  ground  of  decision  has  been  that 
the  result  was  or  might  be  found  to  be  probable,  according  to  common 
experience. 

,  Without  dwelling  upon  other  authorities  in  detail,  we  will  mention 
some  of  those  in  which  substantially  this  xdew  of  the  law  has  been 
stated.  Davidson  v.  Nichols,  11  Allen,  514;  McDonald  i'.  Snelling, 
14  Allen,  290;  Tutein  v.  Hurley,  98  Mass.  211;  Hoadley  v.  Northern 
Transportation  Co.,  115  Mass.  304;  Hill  v.  Winsor,  118  Mass.  251; 
Derry  i'.  Flitner,  118  Mass.  131;  Freeman  v.  Mercantile  Accident  Asso- 
ciation, 156  Mass.  351;  Spade  v.  Lynn  &  Boston  Railroad,  168  Mass. 
285,  and  cases  there  cited;  Cosulich  v.  Standard  Oil  Co.,  122  N.  Y.  118; 
Rhodes  v.  Dunbar,  57  Penn.  St.  274;  Hoag  v.  Lake  Shore  &  Michigan 
Southern  Railroad,  85  Penn.  St.  293;  Behling  v.  Southwest  Penn. 
Pipe  Lines,  160  Penn.  St.  359;  Goodlander  Mill  Co.  v.  Standard  Oil 
Co.,  63  Fed.  Rep.  400,  405,  406;    Haile  v.  Texas  &  Pacific  Railway, 


SECT.  IV.]   STONE  V.    BOSTON  &  ALBANT  RAILRO.YD  CO.        267 

60  Fed.  Rep.  557;  Clark  v.  Chambers,  3  Q.  B.  D.  327;  Whart.  Negl. 
(2d  ed.)  §§  74,  76,  78,  138-145,  155,  955;  Cooley,  Torts,  69,  70;  Add. 
Torts,  40;  Pollock,  Torts,  388;  Mayne,  Damages,  39,  47,  48.  For  a 
recent  English  case  involving  a  question  of  remoteness,  see  En  gel- 
hart  V.  Farrant,  [1897]  1  Q.  B.  240.  The  rule  exempting  a  slanderer 
from  damages  caused  by  a  repetition  of  his  words  rests  on  the  same 
ground.  Hastings  v.  Stetson,  126  Mass.  329;  Shurtleff  v.  Parker, 
130  Mass.  293;  Elmer  v.  Fessenden,  151  Mass.  359. 

Tried  by  this  test,  the  defendant  is  not  responsible  for  the  conse- 
quences of  Casserly's  act.  There  was  no  close  connection  between  it 
and  the  defendant's  negligence.  There  wp.s  nothing  to  show  that  such  a 
consequence  had  ever  happened  before,  during  the  eight  years  covered 
by  the  plaintiff's  testimony,  or  that  there  were  any  existing  circum- 
stances which  made  it  probable  that  it  would  happen.  It  was  of  course 
possible  that  some  careless  person  might  come  along  and  throw  down 
a  lighted  match  where  a  fire  would  be  started  by  it.  This  might,  in- 
deed, have  happened  upon  the  plaintiff's  own  premises,  or  in  any  other 
place  where  inflammable  materials  were  gathered.  But  it  was  not 
according  to  the  usual  and  ordinary  course  of  events.  In  failing  to 
anticipate  and  guard  against  such  an  occurrence  or  accident,  the 
defendant  "saolated  no  legal  duty  which  it  owed  to  the  plaintiff.  What 
qualification,  if  any,  of  this  doctrine  should  be  made  in  case  of  the 
storage  of  high  explosives,  like  gunpowder  and  dynamite,  we  do  not 
now  consider.  See  Rudder  v.  Koopmann,  116  Ala.  332;  Kinney  v. 
Koopmann,  116  Ala.  310;  Rhodes  v.  Dunbar,  57  Penn.  St.  274,  290. 

The  plaintiff,  however,  contends  that  this  question  should  have 
been  submitted  to  the  jury.  This  course  would  have  been  necessary, 
if  material  facts  had  been  in  dispute.  But  where  upon  all  the  evidence 
the  court  is  able  to  see  that  the  resulting  injury  was  not  probable,  but 
remote,  the  plaintiff  fails  to  make  out  his  case,  and  the  court  should 
so  rule  the  same  as  in  cases  where  there  is  no  sufficient  proof  of  negli- 
gence. McDonald  v.  Snelling,  14  Allen,  290,  299.  In  Hobbs  v.  London 
&  Southwestern  Railway,  L.  R.  10  Q.  B.  Ill,  122,  Blackburn,  J. 
said :  "  I  do  not  think  that  the  question  of  remoteness  ought  ever  to  be 
left  to  a  jury;  that  would  be  in  effect  to  say  that  there  shall  be  no  such 
rule  as  to  damages  being  too  remote."  It  is  common  practice  to  with- 
draw cases  from  the  jury  on  the  ground  that  the  damages  are  too  re- 
mote. Hammond  v.  Bussey,  20  Q.  B.  D.  79,  89;  Read  v.  Nichols, 
118  N.  Y.  224;  Cuff  v.  Newark  &  New  York  Railroad,  6  Vroom,  17; 
Behling  v.  Southwest  Penn.  Pipe'Lines,  160  Penn.  St.  359;  Goodlander 
Mill  Co.  V.  Standard  Oil  Co.,  63  Fed.  Rep.  400,  405,  406;  Pennsylvania 
Co.  V.  Whitlock,  99  Ind.  16;  Carter  v.  Towne,  103  Mass.  507;  Hoad- 
ley  V.  Northern  Transportation  Co.,  115  Mass.  304;  Hutchinson 
V.  Boston  Gas  Light  Co.,  122  Mass.  219;  Elmer  v.  Fessenden,  151  Mass. 
359. 

The  plaintiff  further  contends  that  the  negligence  of  the  defendant 


2G.S  STOXE   l\   BOSTON    c^    ALBANY   RAILROAD    CO.     [cHAP.    III. 

in  keeping  the  oil  upon  the  platform  was  concurrent  with  the  careless 
act  of  Casserly,  and  that  therefore  it  was  a  case  where  two  wrongdoers 
acting  at  the  same  time  contributed  to  the  injurious  result.  But  this 
is  not  a  just  view  of  the  matter.  The  negligence  of  the  defendant  pre- 
ceded that  of  Casserly,  and  was  an  existing  fact  when  he  intervened, 
just  as  in  Lane  v.  Atlantic  Works,  111  Mass.  136,  the  negligence  of  the 
defendants  in  leaxdng  their  loaded  truck  in  the  street  preceded  that  of 
the  boys  who  meddled  with  it. 

The  fact,  if  established,  that  the  defendant's  platform  with  the 
oil  upon  it  constituted  a  public  nuisance  is  immaterial,  under  the 
circumstances  of  the  present  case.  If  the  plaintiff  proved  a  nuisance, 
he  need  not  go  further  and  show  that  it  was  negligently  maintained. 
But  we  have  assumed  the  existence  of  negligence  on  the  part  of  the 
defendant.  Illegality  on  the  part  of  a  defendant  does  not  of  itself 
create  a  liability  for  remote  consequences,  and  illegaUty  on  the  part  of 
a  plaintiff  does  not  of  itself  defeat  his  right  to  recover  damages.  The 
causal  connection  between  the  two  still  remains-  to  be  established. 
Hanlon  v.  South  Boston  Horse  Railroad,  129  Mass.  310;  Hyde  Park 
r.  Gay,  120  Mass.  589;  Hall  r.  Ripley,  119  Mass.  135;  Damon  v. 
Scituate,  119  :Mass.  66;  Kidder  v.  Dunstable,  11  Gray,  342;  Hayes 
V.  Michigan  Central  Railroad,  111  U.  S.  228,  241.  In  order  to  maintain 
a  personal  action  to  recover  damages  for  a  public  nuisance,  the  plain- 
tiff must  show  that  his  particular  loss  or  damage  was  caused  by  the 
nuisance,  just  as  in  case  of  any  other  tort.  Wesson  r.  Washburn 
Iron  Co.,  13  Allen,  95;  101,  103;  Stetson  v.  Faxon,  19  Pick.  147,  154. 
And  in  considering  the  question  of  remoteness,  it  makes  no  difference 
what  form  of  wrongdoing  the  action  rests  upon.  Sherman  v.  Fall 
River  Iron  Works,  2  Allen,  524;  The  Notting  Hill,  9  P.  D.  105,  113; 
Mayne,  Damages,  48,  note. 

Without  considering  other  grounds  urged  by  the  defendant,  a  major- 
ity of  the  court  is  of  opinion  that,  upon  the  evidence,  the  defendant 
was  not  bound,  as  a  matter  of  legal  duty,  to  anticipate  and  guard  against 
an  act  like  that  of  Casserly,  he  being  a  stranger  coming  upon  the  defen- 
dant's premises  for  his  own  purposes  and  in  his  own  right. 

Exceptions  overruled.^ 

1  See  also  Jennings  r.  Davis,  187  Fed.  703.  —  Ed. 


SECT.    IV.]  DE   CAMP    I'.    SIOUX    CITY.  269 

DE  CAMP  V.   SIOUX  CITY. 
,         Supreme  Court  of  Iowa,   1888. 

[Reported  74  la.  392.] 

RoTHROCK,  J.  There  is  but  little  controversy  as  to  the  material 
facts  in  the  case.  The  plaintiff  is  an  expressman.  He  used  an  ex- 
press wagon  and  one  horse  in  carrying  on  his  business.  On  the  nine- 
teenth of  September,  1885,  he  was  driving  along  F'ourth  street,  in  said 
city,  his  horse  going  in  a  walk.  He  was  met  in  the  street  by  a  butcher's 
wagon,  in  which  there  were  two  men.  The  wagons  collided,  by  reason 
of  which  the  plaintiff  was  violently  thrown  out  upon  the  ground,  his 
wagon  upset,  his  wagon-bed  fell  on  top  of  him,  his  horse  ran  away, 
and  there  was  a  general  smash-up  of  his  wagon.  The  injury  to  the 
plaintiff  was  not,  however,  occasioned  by  the  running  of  his  horse,  but 
by  the  collision  with  the  butcher's  wagon.  One  of  the  men  in  the 
butcher's  wagon,  who  was  a  witness  for  the  plaintiff,  testified  that 
said  wagon  was  driven,  at  the  time  of  the  accident,  at  the  rate  of  ten 
to  fifteen  miles  an  hour.  All  of  the  other  udtnesses  who  testified  on 
this  point  concur  in  the  statement  that  said  wagon  was  driven  very 
fast.  A  witness  for  plaintiff",  who  saw  the  whole  occurrence,  stated 
that  the  team  was  going  at  the  rate  of  fifteen  miles  an  hour,  and  did 
not  check  speed  until  they  were  stopped  by  the  collision.  Another 
witness  stated  that  the  team  was  traveling  "at  a  great  rate,"  and 
"terrible  fast."  There  was  a  city  ordinance  in  force  at  the  time  of  the 
accident  prohibiting  the  driving  of  any  vehicle  in  any  street  of  the  city 
faster  than  at  the  rate  of  six  miles  an  hour,  or  driving  "  in  such  manner 
as  to  come  in  collision  with  or  strike  any  other  person  or  object." 
The  plaintiff  claims  that  the  city  is  liable  for  his  injures,  l)ecause  it 
permitted  the  street-car  tracks  which  were  in  the  street  to  become 
out  of  repair  to  such  an  extent  that  the  iron  rails  were  so  much  above 
the  surface  of  the  street  that,  as  the  vehicles  approached  each  other, 
the  plaintiff  and  the  dri\'er  of  the  butcher's  wagon  could  not  turn  out 
so  as  to  avoid  the  collision,  because  they  could  not  pull  the  wheels 
of  the  wagons  over  the  rails,  although  they  endeavored  to  do  so; 
that  the  wheels  of  the  wagons  slid  along  the  rails,  and  thus  caused  the 
collision.  The  defendant  requested  the  court  to  give  to  the  jury  the 
following,  among  other  instructions: 

"If  the  jury  find  from  the  evidence  that  the  accident  l)y  which  the 
plaintiff  was  injured  was  caused  by  the  negligence  of  the  city  in  not 
keeping  its  street  in  repair,  combined  with  the  acts  of  a  third  party 
for  which  the  city  was  not  responsible,  and  would  not  have  hap- 
pened but  for  the  acts  of  such  third  party,  then  the  city  is  not  liable." 

"  If  the  jury  find  from  the  e\ddence  that,  although  the  defendant  was 
negligent  in  keeping  its  streets  in  repair  at  the  time  and  place  where 


270  DE   CAMP   V.    SIOUX    CITY,  [cHAP.    III. 

the  accident  occurred,  the  accident  would  not  have  happened  to  the 
plaintiff  by  reason  thereof  without  the  driving  of  the  team  of  lbs 
upon  the  street-railway  track  in  the  manner  in  which  it  was  driven, 
and  that  the  driver  of  said  team  and  wagon  of  said  lbs,  in  dri\ang  upon 
said  railway  track  at  the  time  and  in  the  manner  and  at  the  rate  of 
speed  he  did,  was  not  using  ordinary  care,  then  the  defendant  is  not 
liable." 

These  instructions  were  refused,  and  the  court,  on  its  own  motion, 
charged  the  jury,  as  to  this  feature  of  the  case,  as  follows : 

"The  jury  are  instructed  that,  in  general,  the  negligence  of  third 
parties,  concurring  with  that  of  the  defendant  to  produce  an  injury, 
is  no  defense;  but  if  the  jury  find  from  the  e\ndence  that  the  accident 
in  question  was  caused  or  occasioned  by  the  negligence  or  carelessness 
of  the  driver  of  the  team  that  collided  with  plaintiff's  team,  without 
any  fault  or  negligence  on  the  part  of  defendant  concurring  therein, 
then  the  plaintiff  cannot  recover;  but  if  you  find  that  the  defendant 
was  negligent,  under  this  charge,  in  permitting  the  defect  in  the  street 
at  the  time  of  the  accident,  and  at  the  place  as  alleged,  and  that  such 
negligence  and  defect  contributed  to  produce  and  occasion  the  injury 
in  question  then  the  fact  that  the  driver  of  the  wagon  colliding  with 
plaintiff's  team  was  negligent  would  not  defeat  plaintiff's  right  to 
recover." 

The  defendant  insists  that  these  rulings  of  the  court  are  erroneous 
and  we  think  his  position  must  be  sustained.  As  we  have  said,  there 
is  no  question  but  that  the  butcher's  wagon  was  driven  in  a  careless  and 
negligent  manner.  Not  only  this,  its  rate  of  speed  was  reckless,  dan- 
gerous, unlawful  and  criininal.  Under  the  ordinances  of  the  city  its 
driver  was  liable  to  a  fine  of  one  hundred  dollars,  or  imprisonment 
for  thirty  days.  The  effect  of  the  collision  was  perhaps  stronger 
eWdence  of  the  reckless  conduct  of  the  driver  than  the  testimony  of 
the  \vitnesses.  No  such  a  general  smash-up  would  have  occurred  if 
the  butcher's  wagon  had  been  driven  as  it  ought  to  have  been.  Under 
the  undisputed  facts  of  the  case,  conceding  that  the  street  was  out  of 
repair,  the  plaintiff,  to  say  the  least,  received  his  injuries  by  reason  of 
the  combined  negligent  acts  of  the  city  and  the  driver  of  the  butcher's 
wagon.  More  than  this,  the  reckless  driving  was  the  immediate 
and  proximate  cause  of  the  injury.  There  is  no  warrant  in  the  CAadence 
for  a  finding  that,  if  the  team  had  been  driven  at  a  lawful  and  proper 
rate  of  speed,  the  collision  would  have  nevertheless  injured  the  plain- 
tiff. This  being  so,  the  condition  of  the  street  was  not  the  direct  and 
proximate  cause  of  the  injury.  \Yhatever  the  rule  may  be  in  other 
states,  we  think  that  the  law  in  tliis  state  is  settled  that,  under  such 
circumstances,  there  can  be  no  recovery  against  the  city.  See  Dubuque 
Wood  &  Coal  Ass'n  v.  City  of  Dubuque,  30  Iowa,  184,  and  Knapp 
V.  Sioux  City  &  Pac.  Ry.  Co.,  65  Iowa,  91.  Reversed.^ 

^  See  also  Sweet  v.  Perkins,  196  N.  Y.  482,  90  N.  E.  .50. 


SECT.  IV.]     WASHINGTON  &  GEORGETOWT^  R.  R.  CO.  V.  IlICKEY.  271 


WASHINGTON  &  GEORGETOWN  RAILROAD  CO.  v.  HICKEY. 

Supreme  Court  of  the  United  States,   1897. 

[Reported  166  U.  S.  521.] 

Peckham,  J.,  delivered  the  opinion  of  the  court. 

This  action  was  brought  by  the  defendants  in  error,  who  are  hus- 
band and  wife,  to  recover  from  the  defendants  (the  one  being  a  horse 
car  company  and  the  other  a  steam  railroad  company)  damages  for 
personal  injuries  sustained  by  the  wife  on  account  of  the  alleged  neg- 
hgence  of  the  servants  of  the  defendants.  The  facts  of  the  negligence 
were  alleged  in  the  declaration,  and  each  defendant  filed  a  plea  of  not 
guilty,  upon  which  issue  was  joined.  A  trial  was  had  in  tlie  Supreme 
Court  of  the  District  of  Columbia,  resulting  in  a  verdict  for  the  plain- 
tiffs, the  judgment  upon  which  ha\dng  been  affirmed  by  the  Court 
of  Appeals,  the  defendants  have  brought  the  case  here  for  review. 

On  the  trial  evidence  was  given  tending  to  show  these  facts:  Mrs. 
Hicke}',  one  of  the  plaintiffs,  who  was  liA-ing  with  her  husband  in  the 
city  of  Washington,  left  her  home  therein  on  the  morning  of  the  12th 
day  of  August,  1889,  and  took  a  street  car  of  the  defendant  horse  rail- 
road company  at  the  corner  of  Pennsylvania  Avenue  and  Seventh 
Street  for  the  purpose  of  going  south  along  the  last-named  street;  the 
car  was  a  summer  car  and  crowded  wdth  people  going  to  the  river  on 
an  excursion ;  she  sat  on  the  outside  of  the  third  seat  in  the  front  of  the 
car  and  in  a  very  small  space;  the  people  seemed  in  a  hurry  and  some 
of  them  called  out  frequently  to  the  driver  to  "hurry  up";  upon 
coming  to  the  crossing  of  Seventh  Street  and  Maryland  Avenue,  where 
the  car  tracks  of  the  two  corporations  intersect  each  other,  the  steam 
cars  were  seen  approaching  the  intersection  at  quite  a  rapid  rate; 
the  street  car  stopped  upon  coming  to  the  crossing,  as  the  railroad  gates 
were  lowered ;  then  and  before  the  steam  train  came  on  they  were  raised, 
and  the  street  car  was  started,  and  after  it  got  on  the  track  of  the 
steam  cars  the  gates  were  again  lowered,  shutting  in  the  street  car,  the 
gates  coming  down,  one  on  the  car  and  one  just  behind  the  horses. 
When  the  street  car  entered  upon  the  steam  car  crossing,  the  train  on 
the  tracks  of  the  latter  company  was  still  mo\'ing  quite  rapidly  towards 
the  crossing  and  but  a  short  distance  away  and  in  plain  sight  from 
the  horse  car;  after  getting  partially  upon  the  steam  railroad  track,  the 
gates,  as  stated,  came  down,  and  then  they  were  again  raised,  and  the 
driver  of  the  horse  car  whipped  up  his  horses  and  the  car  got  across. 
Before  the  horse  car  had  crossed  the  tracks,  the  steam  cars  were  coming 
pretty  fast;  the  men  who  were  sitting  down  in  the  horse  car  all  got  up 
and  the  women  commenced  screaming;  the  people  on  the  horse  car 
rushed  to  get  off,  and  Mrs.  Hickey  was,  in  the  course  of  the  excitement 
and  commotion,  pushed  off  the  car  and  was  badly  and  permanently  in- 
jured; when  she  fell,  the  steam  cars  were  coming  down  and  the  horse 


272         WASHINGTON  &  GEORGETOWN  K.  R.  CO.  ('.  HICKEY.     [ciL\P.  III. 

car  (the  gates  having  been  raised)  was  then  driven  across  to  the  other 
side;  the  train  was  so  close  to  the  horse  car  that  it  just  got  off  the  track 
in  time  to  escape  being  run  over,  while  Mrs.  Hickey  says  she  was 
so  near  the  steam  car  tracks  when  the  train  passed  that  she  felt  the  air 
from  the  engine  upon  her  head. 

One  of  the  witnesses  said  that  the  driver  of  the  street  car  first  noticed 
the  train  when  he  was  about  50  feet  from  the  steam  car  track.  His  car 
was  moving  at  the  rate  of  four  and  a  half  to  five  miles  an  hour,  and  the 
train  was  then  between  Eighth  and  Ninth  streets,  about  300  feet  from 
Seventh  Street.  The  driver  wanted  to  cross  the  steam  car  tracks  before 
the  gate  went  down,  and  thought  he  could  do  so  without  danger;  he 
did  not  see  that  the  gates  were  being  lowered  as  he  approached,  and 
did  not  put  on  the  brakes  or  make  other  effort  to  stop  the  car  until 
"he  got  the  bell."  The  gates  were  once  lowered  and  then  raised  to 
let  the  car  pass,  and  then  they  were  again  lowered,  and  it  was  when 
they  were  lowered  the  second  time  that  they  came  down  between  the 
car  and  the  horses,  penning  the  car  in  on  the  steam  track.  The  gates 
were  raised  again,  and  the  driver  succeeded  in  getting  the  horse  car 
across  the  track  before  the  train  approached. 

The  counsel  for  the  horse  car  company  claimed  that  the  cause  of  the 
accident  was  the  commotion  immediately  preceding  it,  and  by  reason 
of  which  the  plaintiff  was  pushed  from  the  car  and  injured,  and  the 
question  was,  what  caused  the  commotion?  He  urged  that  the  com- 
motion was  caused  by  the  improper  and  negligent  lowering  of  the  gates 
at  the  time  when  they  penned  the  horse  car  between  them  and  prevented 
its  progress  across  the  tracks  of  the  steam  car  company,  and  that  if  the 
gates  had  not  been  thus  lowered  the  horse  car  would  have  had  plenty 
of  time  to  cross,  and  there  would  have  been  no  commotion  and  no  acci- 
dent. He,  therefore,  made  several  requests  to  the  court  to  charge 
the  jury  upon  that  subject.  The  point  of  such  requests  was  that  if  the 
jury  should  find  that  the  commotion  and  confusion  which  led  to  the 
accident  were  caused  by  the  sudden  and  negligent  lowering  of  the 
gates  upon  the  street  car,  which  the  driver  of  that  car  had  no  reason 
to  believe  would  be  thus  lowered,  and  if  the  driver  could  have  crossed 
in  safety  but  for  such  lowering,  then  the  horse  car  company  was  not 
responsible,  and  no  recovery  could  be  had  against  it. 

A  further  request  was  made  to  charge  that  there  was  no  evidence 
that  the  management  of  the  horse  car  entered  into  or  contributed  to  the 
negligence  of  the  gatekeeper,  and  if  the  jury  should  find  that  the  injury 
was  caused  by  the  negligence  of  the  gatekeeper,  the  verdict  must  be 
in  favor  of  the  horse  car  company;  also,  that  if  the  jury  should  find 
that  the  horse  car  would  have  passed  the  steam  car  track  without  in- 
jury to  the  plaintiff  except  for  the  lowering  of  the  gates  upon  the  horse 
car,  and  that  the  lowering  was  the  cause  of  the  injury  and  was  an 
act  of  negligence  on  the  part  of  the  gatekeeper,  then  the  horse  car 
company  was  not  responsible  for  the  injury;  also,  that  if  the  jury 


SECT.  IV. J     WASHINGTON  &  GEORGETOWN  R.  R.  CO.  V.  HICKEY.  273 

found  the  injury  to  have  been  the  result  of  negligence  of  the  gatekeeper 
in  the  management  of  the  gates,  and  that  but  for  such  negligence  the 
injury  would  not  have  been  sustained  by  the  plaintiff,  and  that  the 
driver  of  the  horse  car  did  not  know  and  had  no  reason  to  believe 
that  the  gatekeeper  would  be  negligent,  then  the  plaintiffs  were  not 
entitled  to  recover  against  the  horse  car  company. 

The  refusal  of  the  court  to  charge  as  requested  was  excepted  to 
and  is  now  made  a  ground  for  the  reversal  of  the  judgment  by  this 
court.  In  his  argimient  here  the  counsel  for  the  horse  car  company 
said:  "The  gist  of  all  of  which  instructions  is  that  no  matter  whether 
it  was  negligence  or  not  for  the  street  car  company  to  drive  its  car  upon 
the  steam  car  track,  yet,  if  the  jury  found  that  it  was  the  lowering  of 
the  gates  (and  not  the  negligence,  if  it  were  such,  in  going  upon  the 
steam  track)  that  caused  the  injury,  then  they  should  find  for  the 
street  car  company.  The  gist  of  the  instructions  is  that  it  was  the  low- 
ering of  the  gates  that  caused  the  injury." 

The  ^dce  in  all  this  argument,  as  we  think,  consists  in  the  attempted 
separation  into  two  distinct  causes  (remote  and  proximate)  of  what 
in  reality  was  one  continuous  cause.  It  leaves  out  of  view  the  action 
of  the  driver  of  the  street  car  as  to  whether  he  was  or  was  not  negligent, 
provided  the  jury  should  say  the  accident  would  not  have  happened  if 
the  gates  had  not  been  improperly  lowered.  That  is,  although  the  jury 
should  find  that  the  act  of  the  driver  was  negligent,  and  by  reason  of 
that  negligence  his  car  was  placed  in  such  a  position  that  the  negligent 
lowering  of  the  gates  concurred  with  his  action  in  producing  the  in- 
jury, the  street  car  company  must  be  absoh^ed,  if  the  jury  should  be 
able  to  say  that  but  for  such  negligent  lowering  of  the  gates  (which 
the  driver  of  the  horse  car  had  no  reason  to  foresee)  the  accident  would 
not  have  happened.  This  is  an  attempt  to  separate  that  which  upon  the 
facts  in  this  case  ought  not  to  be  separated.  The  so-called  two  negli- 
gent acts  were,  in  fact,  united  in  producing  the  result,  and  they  made 
one  cause  of  concurring  negligence  on  the  part  of  both  companies. 
They  were  in  point  of  time  substantially  simultaneous  acts  and  parts 
of  one  whole  transaction,  and  it  would  l)e  improper  to  attempt  a  separa- 
tion in  the  manner  asked  for  by  the  counsel  for  the  horse  car  company. 

In  this  connection  the  court  did  charge  the  jury  as  follows : 

"It  is  claimed  by  the  counsel  for  the  Washington  and  Georgetown 
Railroad  Company  that  there  was  ample  time  for  its  cars  to  pass  over 
the  track  of  the  Baltimore  and  Potomac  Railroad  Company  before 
the  train* of  the  latter  would  reach  the  point  of  intersection  of  the 
two  tracks,  and  that  as  the  car  of  the  former  company  approached 
the  track  of  the  latter  the  gates  were  up,  and  that  the  horses  drawing 
the  car  had  reached  the  steam  car  track  when  the  gatekeeper  suddenly 
lowered  the  gates,  and  thereby  produced  whatever  alarm  or  confusion 
the  evidence  shows  ensued  among  the  passengers,  including  the  plain- 
tiff, on  the  street  car. 


271         WASHINGTON  &  GEORGETOWN  R.  R.  CO.  V.  HICKEY.     [cHAP.  III. 

"  If  you  find  the  e\ndence  establishes  these  facts,  as  thus  claimed  by 
the  Washington  and  Georgetown  Railroad  Company,  it  would  be  en- 
titled to  your  verdict  in  its  favor." 

The  alleged  negligence  of  the  horse  car  driver  consisted  in  endeavor- 
ing to  cross  at  all,  under  the  circumstances,  until  after  the  passage 
of  the  train  on  the  steam  railroad.  Upon  the  evidence  the  jury  would 
have  been  justified  in  finding  that  he  had  no  right  to  indulge  in  any 
close  calculation  as  to  time  in  attempting  to  cross  the  steam  car  tracks 
before  the  train  thereon  reached  the  point  of  intersection;  that  it  was 
a  negligent  act  in  making  the  attempt  under  a  state  of  facts  where  the 
least  interruption  or  delay  in  the  crossing  over  by  the  horse  car  would 
probably  lead  to  an  accident.  In  this  view  of  the  evidence  and  finding, 
it  was  not  material  that  the  driver  had  no  ground  to  expect  the  partic- 
idar  negligent  act  of  lowering  the  gates  and  the  consequent  obstruc- 
tion to  his  passage  across  the  steam  car  tracks,  or  that  he  would  have 
had  time  to  cross  if  the  delay  thus  occasioned  had  not  occurred.  The 
jury  had  the  right  to  find  it  was  negligent  to  cause  his  car  to  be  so 
placed  that  any  delay  might  bring  on  a  collision.  The  apparent  lia- 
bility to  accident,  if  any  delay  should  occur  from  any  cause  whatever, 
was  plain,  and  such  fact  would  support  a  finding  of  negligence  in  at- 
tempting to  cross  before  the  steam  car  train  had  passed.  In  such  case 
it  would  be  no  excuse  that  the  particular  cause  of  a  possible  or  prob- 
able delay,  viz.,  the  lowering  of  the  gates,  was  not  anticipated.  The 
important  fact  was  that  there  existed  a  possibility  of  delay,  and,  there- 
fore, of  very  great  danger,  and  that  danger  ought  to  have  been  antici- 
pated and  avoided.  A  delay  might  be  occasioned  at  that  time  by  an 
almost  infinite  number  of  causes ;  the  horses  might  stumble,  the  harness 
might  gi\'e  way,  the  car  might  jump  the  track;  a  hundred  difi"erent 
things  might  happen  which  would  lead  to  a  delay,  and  hence  to  the 
probability  of  an  accident.  It  was  not  necessary  that  the  driver  should 
foresee  the  very  thing  itself  which  did  cause  the  delay.  The  material 
thing  for  him  to  foresee  was  the  possibility  of  a  delay  from  any  cause, 
and  this  he  ought  naturally  to  think  of,  and  a  failure  to  do  so,  and  an 
attempt  to  cross  the  tracks,  might  be  found  by  the  jury  to  be  negligence, 
even  though  he  would  have  succeeded  in  getting  across  safely  on  the 
particular  occasion  if  it  had  not  been  for  the  action  of  the  gatekeeper  in 
wrongfully  lowering  the  gates.  The  act  of  the  driver  being  a  negligent 
act,  and  that  act  being  in  full  force  and  in  the  very  process  of  execution 
at  the  time  the  accident  occurred,  which  accident  would  not  have  hap- 
pened but  for  such  negligent  act,  the  fact  that  another  negligent  act  of  a 
third  party  contributed  to  the  happening  of  the  accident  would  not  ab- 
solve the  horse  car  company.  The  negligent  act  of  the  horse  car  driver 
joined  with  and  became  a  part  of  the  other  act  in  wrongfully  lowering  the 
gates,  as  described,  and  both  acts  constituted  but  one  cause  for  the  com- 
motion which  naturally  resulted  therefrom,  and  on  account  of  both  of 
these  acts,  as  parts  of  a  whole  transaction,  the  injury  occurred. 


SECT.  IV.]     WASHINGTON  &  GEORGETOWN  R.  R.  CO.  T.  HICKEY.  275 

In  Insurance  Company  v.  Tweed,  7  Wall.  44,  which  wa^  an  action 
upon  a  policy  of  insurance  that  contained  an  exception  against  fire 
that  might  happen  "by  means  of  an  invasion,  insurrection,  riot  or 
civil  commotion,  or  any  military  or  usurped  power,  explosion,  earth- 
quake or  hurricane,"  the  insurance  company-  was  held  not  liable,  al- 
though the  fire  by  which  the  premises  insured  were  burned  was  not 
directly  caused  by  the  explosion.  The  explosion  occurred  in  another 
warehouse,  by  reason  of  which  a  fire  was  started  that  caught  in 
still  another  building,  and  the  fire  from  that  building  was  com- 
municated to  the  premises  which  were  insured,  and  which  were 
in  that  manner  destroyed  by  tlie  fire.  The  court  held  that,  as  the 
whole  fire  was  continuous  from  the  time  of  the  explosion,  and  was 
under  full  headway  in  about  a  half  an  hour,  the  loss  by  fire  was  within 
the  exception  contained  in  the  policy,  and  the  insurers  were  not  liable. 
In  that  case  the  question  of  proximate  and  remote  causes  was  alluded 
to,  and  it  was  said,  by  Mr.  Justice  Miller,  that  "one  of  the  most  val- 
uable of  all  the  criteria  furnished  us  by  the  authorities  by  which  to 
distinguish  the  remote  from  the  proximate  cause  of  damage  was  to 
ascertain  whether  any  new  cause  has  intervened  between  the  fact 
accomplished  and  the  alleged  cause.  If  a  new  force  or  power  has  in- 
tervened, of  itself  sufficient  to  stand  as  the  cause  of  the  misfortune,  the 
other  must  be  considered  as  too  remote."  In  one  sense  there  was  in 
that  case  a  new  cause  existing  in  the  fact  that  the  explosion  caused  a 
fire  in  another  building  first,  and  that  the  fire  was  carried  by  the  wind 
from  that  building  to  the  building  in  question  and  not  from  the  build- 
ing in  which  the  explosion  occurred,  and  so  it  was  claimed  that  the 
fire  in  the  building  covered  by  the  policy  was  not  directly  caused  by 
the  explosion;  but  the  court  held  that  the  distinction  was  not  well 
founded,  and  that  within  the  policy  the  insurers  were  not  liable.  The 
fire,  in  other  words,  occurred  by  means  of  the  explosion,  and  no  new 
cause  could  be  said  to  have  intervened  simply  because  the  premises 
insured  were  burned  by  the  fire  communicated  from  a  third  building. 

The  case  of  Scheffer  v.  Railroad  Company,  105  U.  S.  249,  is  an 
example  of  the  other  side.  It  was  there  held  that  where  the  passenger 
was  injured  by  reason  of  a  railway  collision,  and  as  a  result  of  such 
injury  he  became  disordered  in  mind  and  body,  and  some  eight  months 
after  the  collision  committed  suicide,  his  personal  representatives  could 
not  maintam  an  action  against  the  railway  company  for  his  death,  as  his 
own  act  was  the  proximate  cause  thereof.  It  was  held  that  the  rela- 
tion of  the  negligence  of  the  railroad  company  to  the  death  of  the 
passenger  was  too  remote  to  be  regarded  as  a  cause  of  such  death,  or  to 
justify  a  recovery  against  the  company.  Mr.  Justice  Miller,  m  de- 
livering the  opinion  of  the  court,  said : 

"The  argument  is  not  sound  which  seeks  to  trace  this  immediate 
cause  of  the  death  through  the  previous  stages  of  mental  aberration, 
physical  suffering  and  eight  months'  disease  and  medical  treatment  to 


276  WASHINGTON  &  GEORGETOWN  R.  R.  CO.  V.  HICKEY.     [CIIAP.  III. 

the  original  accident  on  the  railroad.  Such  a  course  of  possible  or 
even  logical  argument  would  lead  l)ack  to  that  '  first  great  cause  least 
understood,'  in  which  the  train  of  all  causation  ends. 

"The  suicide  1  of  Scheffer  was  not  a  result  naturally  and  reason- 
ably to  be  expected  from  the  injury  received  on  the  train.  It  was  not 
the  natural  and  probable  consequence,  and  could  not  have  been  fore- 
seen in  the  light  of  the  circumstances  attending  the  negligence  of  the 
officers  in  charge  of  the  train. 

"His  insanity,  as  a  cause  of  his  final  destruction,  was  as  little  the 
natural  or  probal)le  result  of  the  negligence  of  the  railway  officials, 
as  his  suicide,  and  each  of  these  are  casual  or  unexpected  causes,  in- 
tervening between  the  act  which  injured  him  and  his  death." 

So  in  Carter  v.  Towne,  103  Mass.  507,  and  DaWdson  v.  Nichols,  11 
Allen,  514,  cited  by  counsel,  the  intervention  of  another  and  sufficient 
cause  to  produce  the  result  is  apparent. 

In  the  first  case  whatever  of  fault  there  was  in  the  sale  of  the  gun- 
powder by  the  defendant  to  the  l)oy  became  absolutely  blotted  out 
when,  with  the  knowledge  of  his  aunt,  who  had  the  charge  of  him  and 
the  house  where  he  was  living,  it  was  placed  in  the  cupboard,  and  a 
week  afterwards  his  mother  gave  him  some  of  the  powder  and  he  fired 
it  off  with  her  knowledge.  The  fact  that  some  days  later  he  took,  -with 
her  knowledge,  more  of  the  powder  and  fired  it  off  and  was  injured  by 
the  explosion,  could  not  in  any  rational  degree  be  said  to  be  caused  by 
the  original  wrongful  sale  of  the  powder. 

In  the  other  case  the  druggist  sold  an  article  harmless  in  itself,  mis- 
taking it  for  another  article,  also  harmless  in  itself,  but  another  person 
afterwards  intermixed  the  article  sold  with  another  article,  making 
thereljy  a  dangerous  explosive  from  which  injury  was  suffered.  It 
was  held  that  there  could  be  no  recovery  against  the  druggist,  because 
the  sale  was  not  the  proximate  cause  of  the  accident. 

These  are  plain  cases  of  the  intervention  of  other  and  suffi- 
cient causes  for  the  injuries  sustained  and  where  the  original  actions 
were  too  remote  to  be  regarded  as  causes  of  such  injuries.  The  other 
cases  cited  by  counsel  are  clearly  distinguishable  in  principle  from 
this  one.  It  is  unnecessary  after  what  has  been  said  to  further  com- 
ment on  them. 

We  think  there  was  no  error  in  the  refusal  of  the  court  to  charge 
as  requested,  and  the  exceptions  to  such  refusal  are  therefore  untenable. 

Another  objection  now  urged  by  the  counsel  for  the  defendant 
railroads  is  to  the  charge  of  the  learned  judge  on  the  subject  of  damages. 
In  response  to  the  request  of  counsel  for  plaintiffs  the  judge  charged 
that  — 

"  If  the  jury  find  from  all  the  evidence  that  the  plaintiffs  are  entitled 
to  recover  in  this  action,  then  they  shall  award  such  damages  within  the 
limits  of  the  sum  claimed  in  the  declaration  as  will  fairh'  and  reasonablv 
compensate  the  plaintiff  Margaret  for  the  pain  and  suffering  caused  to 


SECT.  IV.]     WASHINGTON  &  GEORGETOWN  R.  R.  CO.  V.  HICKEY.  277 

her  by  the  injury  which  she  sustained  and  for  the  injury  to  her  bodily 
health  and  power  of  locomotion,  if  any  such  they  find,  which  she  has 
sustained  in  the  past  and  will  continue  to  sustain  in  the  future  as  a 
natural  consequence  of  said  injury,  and  for  such  internal  injurie^s  and 
impairment  to  her  physical  health  as  they  may  find  to  be  established 
by  the  evidence." 

And  the  judge  also  charged: 

"Your  verdict,  if  you  find  for  the  plaintiff,  must  be  a  matter  to  be 
fixed  by  you  in  the  exercise  of  a  sound  discretion,  subject,  of  course,  to 
the  limits  placed  in  the  declaration  of  thirty  thousand  dollars." 

The  objection  which  the  counsel  makes  to  this  charge  is  that  it 
amounted  to  a  direct  intimation  to  the  jury  that  the  finding  of  a  ver- 
dict for  the  sum  named  in  the  declaration  would  not  be  excessive,  and 
that  the  jury  were  misled  by  it,  for  they  brought  in  a  verdict  for  the 
plaintiff  for  $12,000,  which  the  court  actually  found  to  be  excessive, 
and  directed  that  the  verdict  should  be  set  aside  unless  plaintiffs 
consented  to  remit  $6000,  which  they  did. 

But  we  fail  to  find  from  the  record  that  any  exception  was  taken 
to  the  charge  of  the  judge  upon  this  subject  of  damages.  We  do  not 
intimate  that  an  exception  would  have  been  good,  if  it  had  been  taken; 
it  is  sufficient  that  no  exception  raises  the  question,  and  we  do  not 
therefore  either  discuss  or  decide  it. 

It  is  also  objected  that  there  is  a  variance  between  the  declaration 
and  the  proof,  and  that  the  trial  court  did  not  try  the  issues  formed  by 
the  pleadings,  but  went  beyond  them  and  made  a  new  case  for  the 
plaintiffs. 

The  declaration  alleges  that  the  female  plaintiff'  was  pushed  and 
shoved  from  her  seat  in  the  car  and  thrown  \'iolently  to  the  ground  and 
was  injured  in  that  way.  The  court  charged  the  jury  that  if  they  should 
find  from  the  evidence  that  the  female  plaintiff^  either  jumped  off  the 
car  in  a  reasonable  effort  to  avoid  injury  from  collision,  or  was  pushed 
or  thrown  from  the  car  by  some  other  passenger  or  passengers  en- 
deavoring in  a  reasonable  manner  to  avoid  injury  from  such  collision, 
and  was  thereby  injured,  then  the  plaintiffs  were  entitled  to  recover. 

Upon  this  subject  of  variance  it  was  said  by  Mr.  Chief  Justice  Alvey, 
in  delivering  the  opinion  of  the  Court  of  Appeals  in  this  case,  that  — 

"  Whether  she  [Mrs.  Hickey]  fell  in  consequence  of  a  push  received 
from  some  other  terrified  passenger,  or  in  an  attempt  to  save  herself 
by  jumping  from  the  car,  it  would  make  no  material  difference  in  her 
right  to  recover.  It  is  not  so  much  the  manner  of  lea\ang  the  car  as  it 
was  the  exciting  cause  that  operated  upon  her,  either  directly  and  caused 
her  to  jump  to  save  herself,  or  upon  others  whose  actions  were  justi- 
fiably incited  by  the  impending  danger,  and,  by  natural,  impulsive 
movement,  forced  her  from  the  car.  In  either  case,  her  fall  to  the 
ground  and  injury  were  the  direct  consequences  of  the  apparent  and 
impending  danger  produced  by  the  negligent  conduct  of  the  defendants' 


27S  CITY    OK    LonSYlLLE    V.    HART.  [CHAP.    III. 

servants  and  employees.  There  is,  therefore,  no  such  variance  as  should 
defeat  the  plaintiffs'  right  to  recover,  if  the  facts  were  found  to  exist, 
as  we  must  assume  they  were,  according  to  the  hypothesis  of  the  in- 
struction given  by  the  court.  It  is  said  by  the  Supreme  Court  of  the 
I'nited  States  that  no  variance  ought  ever  to  be  regarded  as  material 
where  the  allegation  and  proof  sustantially  correspond,  or  where  the 
variance  was  not  of  a  character  which  could  have  misled  the  defendant 
at  the  trial.  Nash  v.  Towne,  5  Wall.  689,  ()97.  Here  the  variance  that 
is  supposed  to  exist  was  mainly  produced  by  the  proof  introduced  on 
the  part  of  the  defendants,  and  therefore  there  was  no  surprise  to 
them,  and  it  is  not  pretended  that  they  were,  in  any  manner,  injured 
by  the  supposed  variance.  There  is  in  reality  no  substantial  variance 
between  the  allegations  and  proof." 

We  think  this  is  a  correct  statement,  and  nothing  more  need  be 
said  upon  the  subject. 

These  are  all  the  questions  raised  by  the  counsel  for  the  horse  rail- 
road company  which  we  think  it  necessary  to  mention. 

We  have  carefully  examined  the  various  points  raised  by  the  learned 
counsel  for  the  steam  railroad  company,  and  are  of  opinion  that  they 
show  the  existence  of  no  material  errors  in  the  conduct  of  the  trial 
which  could  or  in  any  way  did  prejudice  the  company.  There  was 
proper  and  sufficient  evidence  submitted  to  the  jury  on  the  question 
of  the  employment  of  the  gateman  by  the  steam  railroad  company. 
Although  there  was  no  direct  evidence  of  an  actual  contract  of  employ- 
ment entered  into  between  the  company  and  the  gateman,  yet  there 
was  ample  evidence  from  which  an  inference  of  such  employment  might 
properly  have  been  drawn  by  the  jury.  We  also  think  the  duties 
of  a  person  so  employed  were  correctly  stated  to  the  jury.  The  ques- 
tion whether  the  gateman  neglected  to  properly  discharge  those  duties 
was  submitted  to  the  jury  in  a  manner  to  which  no  exception  could 
be  taken. 

Upon  an  examination  of  the  whole  case,  we  find  no  error  prejudicial 
to  either  company,  and  the  judgment  against  both  must  be 

Affirmed} 

CITY  OF   LOUISVILLE   v.   HART. 
Court  of  Appeals  of  Kentucky,   191L 

[Reported  142  Ky.   171.] 

Carroll,  J.  Edward  Hart,  while  dri\'ing  a  one-horse  wagon  on 
Payne  Street,  in  the  city  of  Louis\ille,  was  thrown  from  it  in  front  of 
a  street  car  and  killed  by  the  car.  To  recover  damages  for  his  death, 
the  administrator  brought  an  action  against  the  city  of  Louisville  and 
the   Louisville  Railway  Company,   charging  that  the  accident  that 

1  To\\Tisend  v.  Boston,  187  Mass.  283,  72  N.  E.  991;  Galveston  H.  &  S.  A.  Ry. 
r.  \ollrath,  (Tex.  Civ.  App.)  89  S.  W.  279.  —  Ed. 


II 


SECT.    IV.]  CITY    OF    LOUISVILLE    V.    HART.  279 

resulted  in  his  death  was  due  to  the  neghgence  of  the  city  in  failing 
to  keep  the  street  at  the  point  of  the  accident  in  a  reasonably  safe 
condition  for  public  travel,  and  to  the  high  and  dangerous  rate  of 
speed  at  which  the  street  car  was  running  and  the  negligence  in  its 
operation.^     .  .  . 

Another  reason  for  reversal  is  that  the  condition  of  the  street  was 
not  the  proximate  cause  of  the  death  of  Hart,  and  therefore  the  city 
was  not  liable.  The  question  of  proximate  cause  in  negligence  cases 
has  come  before  the  courts  of  the  country  in  innumerable  cases,  and 
as  a  result  there  is  a  large  body  of  law  devoted  to  its  consideration.  But 
there  is  really  no  difference  of  opinion  as  to  the  general  principles  upon 
which  this  doctrine  rests.  It  is  agreed  on  all  sides  that  the  damage 
suffered  must,  as  stated  by  Cooley  on  Torts,  p.  68,  "be  the  legitimate 
sequence  of  the  thing  amiss.  ...  In  other  words,  the  law  always  re- 
fers the  injury  to  the  proximate,  not  to  the  remote,  cause.  The  explana- 
tion of  this  maxim  may  be  thus  given:  If  the  injury  has  resulted 
in  consequence  of  a  certain  wrongful  act  or  omission,  but  only  through 
or  by  means  of  some  intervening  cause,  from  which  last  cause  the  in- 
jury followed  as  a  direct  and  immediate  consequence,  the  law  will  re- 
fer the  damage  to  the  last  or  proximate  cause,  and  refuse  to  trace  it  to 
that  which  was  more  remote." 

Or,  as  stated  by  Shearman  &  Redfield  on  Negligence,  §  26 :  "  The 
proximate  cause  of  an  event  must  be  understood  to  be  that  which 
in  a  natural  and  continuous  sequence,  unbroken  by  any  new  inde- 
pendent cause  produces  that  event,  and  without  which  that  event  would 
not  have  occurred.  Proximity  in  point  of  time  or  space,  however,  is 
no  part  of  the  definition.  That  is  of  no  importance,  except  as  it  may 
afford  evidence  for  or  against  proximity  of  causation;  that  is,  the  proxi- 
mate cause  which  is  nearest  in  the  order  of  responsible  causation."  The 
difficulty  has  always  come  up  when  it  has  been  attempted  to  apply 
these  principles  to  a  state  of  facts  presenting  more  than  one  contrib- 
uting cause  or  act  that  resulted  in  the  wTong  or  injury  complained  of. 
Of  course,  when  there  is  only  one  cause  to  which  the  injury  or  wrong 
is  directly  traceable,  as  when  a  person  intentionally  shoots  another,  or 
where  a  passenger  on  a  railway  train  is  injured  by  a  defect  in  the  car 
in  which  he  is  riding,  there  is  no  difficulty  in  determining  what  was  the 
proximate  cause  of  the  injury.  But  in  cases  in  which  there  is  more  than 
one  cause  or  act  connected  with  or  concerned  in  producing  the  injury 
the  books  are  full  of  decisions  determining  which  one  of  the  causes  or 
acts  was  the  proximate  cause.  As  a  result  of  the  infinite  variety  of 
cases  presenting  this  question,  it  is  easy  to  find  authority  that  will 
apparently  support  each  side  in  almost  any  controversy  in  which  a 
doubtful  question  arises.  To  attempt  to  reconcile  these  cases  would 
be  the  height  of  folly.  In  truth,  when  carefully  studied,  there  is  really 
little  conflict  between  them.  The  apparent  conflict  grows  out  of  the 
'  Part  of  the  opinion  is  omitted.  —  Ed. 


280  CITY   OF    LOUISVILLE   V.    HART.  [CHAP.    III. 

difference  in  facts  to  which  must  be  appHed  the  principle  that  con- 
trols. Or,  as  stated  by  Justice  Miller  in  Louisiana  Mutual  Ins.  Co.  v. 
Tweed,  7  Wall.  44,  19  L.  ed.  65,  in  speaking  of  this  subject:  "  It  would 
be  an  unprofitable  labor  to  enter  into  an  examination  of  these  cases.  If 
we  could  deduce  from  them  the  best  possible  expression  of  the  rule,  it 
would  remain  after  all  to  decide  each  case  largely  upon  the  special  facts 
belonging  to  it,  and  often  upon  the  very  nicest  discriminations." 

No  case  can  be  confidently  cited  as  authority  unless  its  facts  are 
similar  to  the  facts  of  the  case  under  consideration,  and  so  it  would  not 
be  useful  to  re\aew  the  many  cases  cited  by  counsel  for  appellant,  as 
few  of  them  are  directly  in  point.  To  again  restate  briefly,  we  have 
this  state  of  facts:  Hart  on  account  of  defects  in  the  street  that  ren- 
dered it  unsafe  for  travel  was  thrown  from  his  wagon,  and  fell  on  the 
street  car  track  immediately  in  front  of  an  approaching  car  that  was 
running  at  a  dangerous  and  neghgent  rate  of  speed,  and  was  run  over 
and  killed  by  the  car.  Now  we  may  assume  that,  if  the  street  had  been 
reasonal)ly  safe,  he  would  not  have  been  thrown  from  his  wagon,  and, 
of  course,  would  not  have*  been  killed.  We  may  further  assume  that  if 
the  street  car  had  been  operated  with  ordinary  care  that  it  could 
have  been  stopped  before  striking  him,  and  so,  although  the  defective 
condition  of  the  street  caused  him  to  fall  on  the  track,  he  would  yet 
have  escaped  injury  except  Tor  the  negligence  in  the  operation  of  the 
car.  We  have,  then,  two  appro.vimately  concurring  acts  of  negligence 
by  two  independent  agencies  that  brought  about  his  death.  Neither 
act  of  negligence  in  itself  without  the  cooperation  of  the  other  would 
have  harmed  him.  On  the  other  hand,  however  fast  the  car  was  going, 
unless  he  had  been  thrown  in  front  of  it,  he  would  not  have  been  killed. 
On  the  other  hand,  although  thrown  on  the  car  track  by  the  bad  street, 
he  would  have  escaped  death  if  it  had  been  prudently  operated.  The 
question  now  is  which  of  these  acts  of  negligence  was  the  proximate 
cause  of  his  death.     W'e  think  that  both  of  them  may  be  so  treated. 

Two  agencies  acting  entirely  independent  of  each  other  as  in  this 
case  may  jointly  and-  concurrently  be  the  proximate  cause  of  an  injury, 
when  it  would  not  have  happened  except  for  the  concurrence  at  ap- 
proximately the  same  time  and  place  of  the  two  negligent  acts.  Thus, 
in  Cooley  on  Torts,  p.  78,  it  is  said:  "If  the  damage  has  resulted  di- 
rectly from  concurrent  wrongful  acts  or  neglects  of  two  persons,  each 
of  these  acts  may  be  counted  on  as  the  wrongful  cause  and  the  parties 
held  responsible  either  jointly  or  severally  for  the  injury."  In  Shear- 
man &  Redfield  on  Negligence,  §  39,  the  rule  is  thus  stated :  "  It  is 
also  agreed  that  if  the  negligence  of  the  defendant  concurs  with  the 
other  cause  of  the  injury,  in  point  of  time  and  place,  or  otherwise  :>o 
directly  contributes  to  the  plaintiff''s  damage  that  it  is  reasonably 
certain  that  the  other  cause  alone  would  not  have  sufficed  to  produce 
it,  the  defendant  is  liable  notwithstanding  he  may  not  have  anticipated 
or  been  bound  to  anticipate  the  interference  of  the  superior  force 


SECT.    IV.]  CITY    OF   LOUISVILLE    V.    HART.  281 

which  concurring  with  his  own  neghgence  produced  the  damage." 
In  §  346  the  same  authors  say:  "The  general  rule  in  all  states  is 
that  where  two  causes  combine  to  produce  an  injury  to  a  traveller  upon 
a  highway,  both  of  which  are  in  their  nature  proximate,  the  one  being 
a  culpable  defect  in  the  highway,  and  the  other  some  occurrence  for 
which  neither  party  is  responsible,  the  municipality  is  liable,  provided 
the  injury  would  not  have  been  sustained  but  for  such  defect." 

As  illustrative  cases  on  the  subject  treated  of  by  these  standard 
authors,  we  mention  out  of  a  number  the  following: 

In  Louisville  Home  Telephone  Co.  v.  Gasper,  123  Ky.  128,  93  S.  W. 
1057,  9  L.  R.  A.  (N.  S.)  548,  the  facts  were  these:  Gasper  while  walking 
in  a  public  alley  adjoining  his  home  in  the  city  of  Louisville  was  knocked 
down  and  crushed  by  and  under  a  heavy  wagon  owned  and  operated 
by  Dressle.  The  Louisville  Home  Telephone  Company  maintained 
in  the  alley  a  telephone  pole,  to  which  it  negligently  strung  and  main- 
tained a  guy  wire,  running  obliquely  from  the  top  thereof  to  a  block 
in  the  ground,  so  as  to  form  and  cause  a  dangerous  ol)struction  to  pe- 
destrains  and  vehicles  using  or  passing  through  the  alley.  The  wagon 
of  Dressle,  while  being  driven  through  the  alley  by  his  servants  in  a 
negligent  manner,  ran  upon  and  against  appellant's  guy  wire,  which 
caused  the  wagon  to  be  overturned  and  thrown  upon  Gasper,  resulting 
in  his  injuries.  Under  these  facts,  the  contention  of  the  telephone  com- 
pany was  that  Gasper  was  injured  solely  by  the  wagon  falling  upon 
him,  and  that  its  negligence,  if  any,  was  too  remote  to  have  produced 
the  injury  without  an  intervening  cause,  and  therefore  its  negligence 
was  not  the  proximate  cause  of  the  injury.  But  the  court,  rejecting  this 
view,  said :  "  If  the  telephone  company  was  negligent  as  to  the  manner 
in  which  its  guy  wire  was  anchored,  and  it  constituted  a  dangerous 
obstruction  —  that  is,  one  that  was  likely  to  result  in  injury  to  others 
from  an  intervening  cause  —  which,  though  not  in  fact  anticipated  by 
appellant,  would  not  have  happened  but  for  its  earlier  negligence,  it 
cannot  escape  liability,  because  its  negligence  would  in  such  case  be  the 
proximate  cause  of  the  injury.  ...  It  is  also  Aery  well  settled  that 
when  an  injury  is  caused  by  two  causes  concurring  to  produce  the  result, 
for  one  of  which  the  defendant  is  responsible  and  not  for  the  other,  the 
defendant  cannot  escape  responsibility.  One  is  liable  for  an  injury 
caused  by  the  concurring  negligence  of  himself  and  another,  to  the  same 
extent  as  if  for  one  caused  entirely  by  his  own  negligence." 

In  Walrod  v.  Webster  County,  lio'lowa,  349,  81  N.  W.  598,  47  L.  R. 
A.  480,  the  court  had  before  it  a  case  in  which  two  independent  causes 
contributed  to  the  injury,  and  said:  "When  two  causes  combine  to 
produce  an  injury  to  a  traveller  upon  a  highway,  both  of  which  are 
in  their  nature  proximate,  the  one  being  a  culpable  defect  in  the  high- 
way and  the  other  some  occurrence  for  which  neither  is  responsible, 
the  municipality  is  liable  provided  the  injury  would  not  have  been 
sustained  but  for  such  defect.  .  .  .  The  mere  fact  that  some  other 


282  CITY   OF    LOUISVILLE   V.    HART.  [CHAP.    III. 

cause  operates  with  the  neghgence  of  the  defendant  to  produce  the  in- 
jury does  not  reheve  it  from  Habihty.  His  original  wrong  concurring 
with  some  other  cause,  and  both  operating  approximately  at  the 
same  time  and  producing  the  injur}',  makes  him  liable,  whether  the 
other  cause  was  one  for  which  the  defendant  was  responsible  or  not." 

In  Lake  v.  Milliken,  62  Me.  240,  16  Am.  Rep.  456,  it  appears  that  the 
defendants  negligently  piled  boards  in  the  traveled  part  of  a  highway, 
and  that  a  stranger  passing  along  with  a  wagon  loaded  with  barrels 
ran  over  these  boards,  producing  a  rattling  noise,  which  frightened  the 
plaintiff's  horse,  causing  him  to  throw  the  plaintiff  from  his  wagon  and 
injure  him.  In  holding  the  defendants  liable,  the  court  quoted  with 
approval  from  Ricker  v.  Freeman,  50  N.  H.  420,  9  Am.  Rep.  267,  the 
following  statement :  "  We  think  the  principle  is  clearly  established  that 
negligence  may  be  regarded  as  the  proximate  cause  of  an  injury  of 
which  it  may  not  be  the  sole  and  immediate  cause.  If  the  defendant's 
negligent,  inconsiderate,  and  wanton,  though  not  malicious,  act  con- 
curred with  any  other  thing,  person,  or  event,  other  than  the  plaintiff's 
own  fault  to  produce  the  injury,  so  that  it  clearly  appears  that  but 
for  such  wrongful  negligent  act  the  injury  would  not  have  happened, 
and  both  circumstances  are  closely  connected  with  the  injury  in  the 
order  of  events,  the  defendant  is  responsible,  even  though  his  neghgent 
wrongful  act  may  not  have  been  the  nearest  cause  in  the  chain  of  events 
or  the  order  of  time." 

Applying  to  the  facts  of  this  case  the  principles  announced,  we  have 
no  difficulty  in  reaching  the  conclusion  that  the  defective  street  was 
one  of  the  proximate  causes  that  resulted  in  the  death  of  Hart,  and 
therefore  an  action  would  lie  against  the  city  as  well  as  the  street  rail- 
way company. 

Another  error  assigned  is  that  the  court  should  have  defined  "  proxi- 
mate cause."  In  our  opinion  a  definition  of  "proximate  cause"  would 
have  confused  rather  than  enlightened  the  jury.  They  were  told  by 
an  instruction  that:  "If  they  believe  from  the  ev-idence  that  the  dan- 
gerous and  defective  condition  of  Payne  Street  at  or  about  where  the 
collision  occurred,  if  it  was  dangerous  or  defective,  caused  the  plaintiff's 
decedent  to  be  thrown  from  his  wagon  and  upon  the  track  of  the  Louis- 
ville Railway  Company  and  under  one  of  its  cars,  whereby  he  was  so 
mangled  and  injured  that  he  died  therefrom,  then  the  law  is  for  the 
plaintiff  as  against  the  defendant  city  of  Louisville,  and  the  jury 
should  so  find."  This  instruction  left  it  to  the  jury  to  say  whether 
or  not  the  defect  in  the  street  was  the  cause  of  the  injury  complained 
of,  and  we  do  not  think  an  instruction  defining  or  attempting  to 
define  "proximate  cause"  would  have  aided  the  jury  in  reaching  a 
correct  verdict.  The  trial  court  correctly  determined  as  a  matter  of 
law  that  the  city  was  liable  if  the  defect  in  the  street  brought  about 
the  death  of  Hart,  and  left  to  the  jury  the  question  whether  it  did  or 
not. 


SECT.    IV.]       BENTLEY   V.    FISHER  LUMBER  &  MANUF.    CO.  283 

BENTLEY  v.  FISHER  LUMBER  &  MANUFACTURING  CO. 
Supreme  Court  of  Louisiana,  1899. 

[Reported  51  La.  Ann.  451.] 

Miller,  J.  The  plaintiff  appeals  from  a  judgment  awarding  her 
only  part  of  the  damages  she  claims  to  have  sustained  by  the  building 
of  a  levee  on  her  land  by  the  defendants.^  .  .  .  Obstructing  a  natural 
outlet  for  the  lands  of  others  liesides  plaintiff's  the  levee  proved  a 
source  of  discontent  to  the  landowaiers  in  the  ^^cinity;  and  the  result 
was  that  a  number  of  men  assembled,  and  cut  the  levee,  causing 
the  confined  water  to  escape  on  plaintiff's  cultiA-ated  lands,  below  or 
south  of  it,  destrojdng  her  crop,  unfitting  the  land  for  the  production 
of  the  full  crop  it  would  have  ^delded  but  for  the  precipitation  of  the 
water  on  the  land  at  a  time  too  far  advanced  in  the  season  to  admit 
of   successful   replanting.  .  .  . 

The  claim  for  damages  in  respect  to  the  land  below  or  south  of  the 
levee  encounters  the  difficulty  that  the  inundation  causing  the  alleged 
loss  of  crops  was  the  result  of  the  act  of  the  mob  cutting  the  levee. 
In  this  view,  it  was  not  the  levee  that  caused  the  damage;  for,  while 
the  levee  stood,  there  could  be  no  flooding  of  the  land.  Can  the  defend- 
ants be  held  for  the  A-iolence  of  the  mob  that  precipitated  the  water 
on  the  land?  The  law  is  clear  that  in  suits  of  this  character,  in  com- 
puting actual  damages,  the  proximate  cause  is  that  which  the  law  re- 
gards. When  the  law  awards  other  damages  than  those  attributable 
to  the  proximate  cause,  they  are  given  as  punitory.  Sedg.  Dam., 
§  58,  et  seq.;  2  Greenl.  Ev.,  §  256.  We  have  given  attention  to  the  line 
of  authority  cited  by  plaintiff  to  connect  the  act  of  the  defendant  in 
building  the  levee  with  the  subsequent  ^'iolence  of  the  mob  cutting 
it.  The  "Squib"  Case  is  found  in  the  text-books  to  illustrate  the  rule 
that  distinguishes  the  remote  from  the  proximate  cause.  The  squib 
is  thrown  in  the  market  house,  lights  on  one  stall,  then  on  another,  from 
both  of  which  it  is  thrown,  and  finally  the  squib  thus  thrown  from  the 
last  stall  enters  the  plaintiff's  eye  and  destroys  his  sight.  The  court 
attributed  the  plaintiff's  injury  to  the  party  M'ho  first  threw  the  squib; 
in  other  words,  his  act  was  deemed  the  proximate  cause  of  the  loss. 
The  text-books  call  attention  to  the  concurrence  to  the  full  extent  of  the 
decision  of  but  one  of  the  four  judges,  and  to  the  dissent  of  Justice 
Blackstone.  Sedg.  Meas.  Dam.,  p.  58,  note.  This  type  of  cases,  cited 
in  support  of  plaintiff's  demand,  does  not,  in  our  A-iew,  support  it. 
The  hurling  of  the  squib  in  the  case  cited,  the  wrongful  act,  is  the 
effective  and  direct  cause  of  the  loss  of  the  plaintiff's  eye.  In  the  case 
before  us  the  levee  built  by  defendant  was  harmless,  in  respect  to  plain- 
tiff's loss.  The  act  of  the  mob  was  the  direct  cause  of  that  loss.  Our 
law,  and  the  general  law  in  this  class  of  cases,  restricts  damages, 
1  Part  of  the  opinion  is  omitted. —  Ed. 


284  SCHOEPFLIN   V.    COFFEY.  [CHAP.    III. 

unless  given  by  way  of  punishment,  to  the  loss  arising  from  the  proxi- 
mate cause.  Gaulden  v.  McPhaul,  4  La.  Ann.  79;  Grant  v.  McDonogh, 
7  La.  Ann.  448.  With  the  most  patient  consideration  on  this  part  of 
the  case,  we  reach  the  conclusion  of  our  learned  brother  of  the  district 
court,  that  the  plaintiff's  demand  in  this  respect  cannot  be  sustained. 


SCHOEPFLIN  V.   COFFEY. 

Court  of  Appeals  of  New  York,  1900. 

[Reported  162  N.Y.   12.] 

Martin,  J.  This  action  was  for  both  slander  and  libel.  The  com- 
plaint contains  five  counts.  The  first  and  fifth  are  for  libel  and  the 
remainder  for  slander.  Upon  the  trial  the  court  held  that  the  com- 
plaint did  not  state  a  cause  of  action  for  slander,  as  the  words  alleged 
were  not  actionable  per  se  and  no  special  damages  were  averred.  From 
this  determination  no  appeal  was  taken.  The  case  was,  however,  sub- 
mitted to  the  jury  as  an  action  for  the  libel  charged  in  the  first  and  fifth 
counts  of  the  complaint. 

These  counts  in  substance  charge  that  on  the  fifteenth  day  t)f  May, 
1895,  at  Albany,  the  defendant  maliciously  spoke  and  published 
concerning  the  plaintiff  the  false  and  defamatory  words  following: 
"An  indictment  has  been  issued  against  Schoepflin  (meaning  this 
plaintiff)  by  the  grand  jury  of  Albany  county  in  connection  with  Camp- 
bell's ice  bill,  and  a  warrant  is  out  for  his  arrest;"  "I  know  that  an 
indictment  has  been  found  against  Schoepflin  (meaning  this  plaintiff) 
by  the  grand  jury  in  connection  with  Campbell's  ice  bill,  from  the  best 
authority  in  the  world;  I  would  gamble  on  it,"  meaning  and  declaring 
thereby  that  he  knew  the  grand  jury  of  Albany  county  had  found  an 
indictment  against  the  plaintiff,  who  was  then  a  member  of  the  legis- 
lature, for  corrupt  and  criminal  conduct  in  connection  with  a  bill 
which  had  been  introduced  and  was  pending  in  the  assembly;  that  such 
statements  were  made  in  the  presence  of  G.  Edward  Graham,  and  in 
the  presence  of  G.  Edward  Graham  and  Le^vns  J.  Seabold;  and  that 
Graham  was  the  manager  of  the  Associated  Press  at  Albany,  and  Sea- 
bold  was  a  reporter  and  news-gatherer  for  the  New  York  World.  It 
then  averred,  "and  thereby  defendant  caused  said  false  and  defama- 
tory statement  to  be  printed  and  published  in  most  of  the  daily  news- 
papers of  the  state  of  New  York  and  in  the  said  New  York  World." 

The  first  question  argued  was  whether  the  complaint  alleged  a  cause 
of  action  against  the  defendant  for  libel.  It  is  to  be  observed  that  after 
stating  the  slanderous  words  which  were  alleged  to  have  been  spoken 
in  the  presence  of  Graham  and  Seabold,  and  the  fact  that  they  were  re- 
porters, the  plaintiff  alleges  that  thereby  the  defendant  caused  those 


SECT.    IV.]  SCHOEPFLIN   V.    COFFEY.  285 

statements  to  be  printed  and  published.  The  complaint  contains  no 
direct  allegation  that  the  defendant  caused  them  to  be  printed  and  pub- 
lished, but  after  stating  certain  premises  which  included  the  speaking 
of  the  words  in  the  presence  of  the  reporter  and  manager  of  the  Asso- 
ciated Press,  it  is  averred  as  a  conclusion  from  the  preceding  allega- 
tions, but  not  as  a  fact,  that  the  defendant  thereby  caused  the  state- 
ments to  be  printed  and  published.  Ob\dously,  the  word  "thereby" 
was  used  in  the  sense  of  by  that  means,  or  in  consequence  of  the  pre- 
ceding allegations,  and,  hence,  the  averment  was  of  a  conclusion  as 
to  the  effect  or  result  of  the  facts  pre\"iously  alleged.  If  they  were  un- 
true, the  plaintiff  could  not  be  convicted  of  perjury  for  falsely  alleging 
and  verifying  an  averment  that  the  defendant  caused  the  statements 
made  by  him  to  be  printed  and  published,  as  he  made  no  such  allega- 
tions, but  merely  stated  his  deduction  from  the  preceding  facts.  Ob- 
viously the  complaint  contains  no  sufficient  allegation  that  thedefendant 
caused  the  printing  or  publication  of  the  words  spoken,  to  constitute 
a  cause  of  action  against  him  for  libel. 

We  have,  however,  searched  the  record  in  vain  to  find  any  proper 
objection  or  exception  which  enables  the  defendant  upon  this  appeal 
to  avail  himself  of  the  insufficiency  of  the  complaint.  To  raise  that 
question  it  was  necessary  that  an  objection  to  its  sufficiency  should  have 
been  taken,  and  the  ground  upon  which  it  was  claimed  to  be  insufficient 
should  have  been  brought  to  the  attention  of  the  court.  It  is  not  a  fatal 
objection  on  appeal  that  the  cause  was  tried  outside  the  pleadings 
in  the  absence  of  some  specific  objection  to  that  course.  Parties 
may,  if  they  so  elect,  depart  from  the  issues  made  by  the  pleadings 
and  try  other  questions  relating  to  the  merits  of  the  controversy  by 
consent  or  acquiescence.  (Farmers'  L.  &  T.  Co.  v.  Housatonic  R.  R. 
Co.,  152  N.  Y.  251.)  As  the  question  of  the  sufficiency  of  the  com- 
plaint was  not  properly  raised  in  the  court  below,  it  cannot  be  raised 
here  for  the  first  time. 

The  next  question  presented  is  whether  the  proof  was  sufficient 
to  justify  the  court  in  submitting  to  the  jury  the  question  whether  the 
defendant  caused  or  procured  the  publication  of  the  alleged  libel.  In 
discussing  this  question,  we  shall  assume  that  a  person  who  requests, 
procures  or  directs  another  to  publish  a  libel,  or  connives  at  or  assists 
in  its  publication,  is  liable  therefor.  But  to  justify  a  jury  in  finding 
a  defendant  liable  for  such  publication,  there  must  be  some  e\adence 
that  it  was  procured  by  him,  or  that  he  was  guilty  of  some  affirmative 
act  which  secured  or  induced  it.  The  mere  speaking  of  words  in  the 
presence  of  third  persons  that  are  not  actionable  per  se  would  at  most 
amount  to  a  mere  slander,  even  if  special  damages  were  alleged,  and 
their  repetition  or  the  printing  and  publication  of  them  by  the  inde- 
pendent act  of  a  third  party,  would  not  render  the  person  speaking 
them  responsible  therefor. 

It  is  too  well  settled  to  be  now  questioned  that  one  who  utters  a 
slander,  or  prints  and  publishes  a  libel,  is  not  responsiljle  for  its  voluo- 


286  SCHOEPFLIN    V.    COFFEY.  [ciIAP.    III. 

tary  and  unjustifiable  repetition,  without  his  authority  or  request, 
by  others  over  wliom  he  has  no  control  and  who  thereby  make  them- 
sehes  Iial)le  to  the  person  injured,  and  that  such  repetition  cannot  be 
considered  in  law  a  necessary,  natural  and  probable  consequence  of  the 
original  slander  or  libel.  (Newall  on  Defamation,  245;  Moak's  Under- 
hill  on  Torts,  145;  M'Gregor  v.  Thwaites,  3  B.  &  C.  35.)  The  remedy 
in  such  a  case  would  be  against  the  party  who  printed  and  published 
the  words  thus  spoken,  and  not  against  the  one  speaking  them,  as  a 
person  is  not  liable  for  the  independent  illegal  acts  of  third  persons 
in  publishing  matters  which  may  have  been  uttered  by  him,  unless  they 
are  procured  by  him  to  be  published,  or  he  performed  some  act  which 
induced  their  publication.  (Ward  r.  Weeks,  7  Bing.  211;  Olmsted 
;•.  Brown,  12  Barb.  657.)  The  repetition  of  defamatory  language  by 
another  than  the  first  publisher  is  not  a  natural  consequence  of  the  first 
publication,  and,  therefore,  the  loss  resulting  from  such  repetition 
is  not  generally  attributable- to  the  first  publisher.  This  rule  is  based 
upon  the  principle  that  every  person  who  repeats  a  slander  is  respon- 
sible for  the  damage  caused  by  such  repetition,  and  that  such  damage 
is  not  the  proximate  and  natural  consequence  of  the  first  publication 
of  the  slander.  (Bassell  r.  Elmore,  48  N.  ¥.504;  Fowles  v.  Bowen, 
30  N.  Y.  20;  Terwilliger  v.  Wands,  17  N.  Y.  57,  58;  Laidlaw  v.  Sage, 
158  N.  Y.  73.) 

In  the  latter  case  the  question  of  proximate  cause  was  considered, 
and  it  was  held  that  it  was  applicable  to  actions  of  tort,  and  that  the 
proximate  cause  of  an  event  was  that  which  in  a  natural  and  con- 
tinuous sequence,  unbroken  by  any  new  cause,  produces  the  event 
complained  of,  and  without  which  it  would  not  have  occurred.  Apply- 
ing the  principle  of  those  cases  to  the  question  under  consideration, 
it  becomes  obvious  that  the  speaking  of  the  words  by  the  defendant 
was  not  the  proximate  cause  of  the  injury  the  plaintiff  sustained  by 
reason  of  their  publication  in  the  various  newspapers  of  the  state. 
We  have  examined  the  case  of  Youmans  v.  Smith  (153  N.  Y.  214), 
which  is  so  firmly  relied  upon  by  the  plaintiff,  but  do  not  find  any  prin- 
ciple decided  there  which  is  in  conflict  with  the  doctrine  already  stated. 
There  the  person  who  ordered  the  matter  printed  informed  the  printer 
that  he  desired  it  for  the  purpose  of  circulation.  Under  those  circum- 
stances it  was  held  that  the  printer  was  liable. 

The  record  in  this  case  seems  to  be  entirely  barren  of  proof  that  the 
defendant  in  any  way  procured,  requested,  commanded  or  induced 
the  printing  of  the  matters  set  forth  in  the  complaint.  The  most  that 
was  established  was  that  a  person  whom  the  defendant  knew  to  be  a 
reporter  asked  him  as  to  a  report  which  was  in  circulation  concerning 
the  matters  alleged  in  the  complaint,  stating  that  he  understood 
the  defendant  had  asserted  the  facts,  which  were  subsequently  pub- 
lished, and  the  latter  admitted  having  done  so.  There  is,  however,  no 
proof  that  his  statement  was  made  for  publication,  but,  on  the  con- 
trary, the  proof  was  that  nothing  was  said  upon  the  subject.  There 
is  also  other  evidence  of  the  defendant  which  tends  to  show  that  he 


SECT.    IV.]     GL.\SSEY    V.    WORCESTER   CONSOLIDATED    ST.    RY.    CO.     287 

did  not  intend  that  it  should  be  published  and  had  no  design  to  pro- 
cure its  publication.  We  are  of  the  opinion  that  the  court  erred  in 
denying  the  defendant's  motion  for  a  non-suit,  and  in  not  directing  a 
verdict  for  him  upon  the  ground  that  the  proot  was  insufficient  to 
constitute  a  cause  of  action  against  him  for  libel. ^ 


GLASSEY  V.  WORCESTER  CONSOLIDATED  STREET  RAIL- 
WAY CO. 

Supreme  Judicial  Court  of  Massachusetts,  1904. 

[Reported  185  Mass.  315.] 

Morton,  J.  These  two  cases  were  tried  and  have  been  argued 
together.  At  the  close  of  the  plaintiffs'  e\'idence  in  the  Superior 
Court  the  presiding  judge  ruled  at  the  defendant's  request  that  the 
plaintifPs  could  not  recover  and  directed  verdicts  for  the  defendant. 
The  cases  are  here  on  exceptions  by  the  plaintiffs  to  these  rulings. 

The  case  of  the  pl;iintiff  Rachel,  who  is  a  married  woman,  is  for  in- 
juries alleged  to  have  been  received  by  her  in  consequence  of  the  neg- 
ligence of  the  defendant  in  leaving  a  large  reel  by  the  side  of  or  in 
Cameron  Street  in  Clinton,  which  some  boys  rolled  down  the  street  and 
which  struck  the  carriage  in  which  the  plaintiff  was  dri^Tng  and  threw 
her  out  and  caused  the  injuries  complained  of.  The  other  action  is 
by  the  husband  for  the  loss  of  consortium  and  the  expenses  incurred 
by  him  because  of  the  injuries  to  his  wife. 

The  e\adence  would  have  warranted  a  finding,  and  for  the  purposes 
of  these  cases  we  assume  that  such  was  the  fact,  that  the  reel  belonged 
to  the  defendant  and  had  had  feed  wire  upon  it  which  had  been  strung 
upon  its  poles  by  persons  in  its  employ.  But  it  is  not  clear  whether 
the  reel  was  left  on  a  vacant  piece  of  land  just  outside  the  limits  of  the 
highway,  or  whether  it  was  left  within  the  location  of  the  highway. 
We  assume  as  most  favorable  to  the  plaintiffs  that  it  was  left  within 
the  limits  of  the  highway.  The  uncontradicted  testimony  shows,  how- 
ever, that  it  was  left  outside  the  traveled  portion  of  the  highway  lying 
on  its  side  in  the  grasc  in  a  secure  position.  The  plaintiffs  introduced 
in  evidence  a  by-law  of  the  town  forbidding  persons  to  leave  obstruc- 
tions of  any  kind  in  the  highway  without  a  written  license  from  the 
road  commissioners  or  other  board  ha\ang  charge  of  the  streets,  and 
they  contend  that,  if  the  reel  was  left  within  the  location  of  the  highway 
when  forbidden  by  the  by-law,  that  of  itself  constituted  such  negligence 
as  renders  the  defendant  liable.  But  the  most,  we  think,  that  can  be 
said  of  this  contention  is  that  the  lea^'ing  of  the  reel  within  the  limits 
of  the  highway  was  evidence  of  negligence,  not  that  in  and  of  itself 
rendered  the  defendant  liable  or  should  be  held  as  matter  of  law  to  have 
contributed  directly  to  the  accident.  Hanlon  v.  South  Boston  Horse 
1  In  the  remainder  of  the  opinion  other  points  are  discussed. —  Ed. 


288         GLASSEY  V.  WORCESTER  CONSOLIDATED  ST.  RY.  CO.     [CHAP.  III. 

Railroad,  129  Mass.  310.  The  question  is  whether  in  leaxang  the  reel 
lying  on  its  side  in  the  grass  near  the  road  the  defendant  ought  reason- 
ably to  have  anticipated  that  children  passing  along  the  street  on  their 
way  to  school,  or  for  other  purposes,  would  take  it  from  the  place  where 
it  had  been  left,  and  engage  in  rolling  it  up  and  down  the  street,  and 
that  travelers  on  the  highway  would  thereby  be  injured.  The  question 
is  not  whether  a  high  degree  of  caution  ought  to  have  led  the  defendant 
to  anticipate  that  such  a  thing  might  possibly  occur,  but  whether  it 
ought  reasonably  to  have  been  expected  to  happen  in  the  ordinary 
course  of  events.  In  the  former  case  the  defendant  would  not  be  liable, 
and  in  the  latter  it  might  be  held  liable,  notwithstanding  an  active 
human  agency  had  intervened  between  the  original  wrongful  act  and 
the  injury.  The  case  of  Stone  v.  Boston  &  Albany  Railroad,  171  Mass. 
536,  furnishes  an  illustration  of  the  former  class  of  cases,  and  the  case 
of  Lane  v.  Atlantic  Works,  HI  Mass.  136,  of  the  latter. 

It  is  clear  that  the  plaintiff  Rachel  was  in  the  exercise  of  due  care. 
But  assuming  that  the  reel  was  left  in  the  highway  and  that  that  was 
some  evidence  of  negligence,  we  think  that  such  negligence  was  the 
remote  and  not  the  direct  and  proximate  cause  of  the  plaintiff  Rachel's 
injury.  The  material  facts  with  the  inferences  to  be  drawn  from 
them  are  not  in  dispute,  and  in  such  a  case  the  question  of  remote  or 
proximate  cause  is  one  of  law  for  the  court.  Stone  v.  Boston  &  Albany 
Railroad,  171  Mass.  536,  543.  McDonald  v.  Snelling,  14  Allen,  290, 
299.  Hobbs  v.  London  &  Southwestern  Railway,  L.  R.  10  Q.  B.  Ill, 
122.  The  defendant's  servants  left  the  reel  in  a  secure  position  Ijang 
on  its  side  in  the  grass  outside  the  traveled  part  of  the  street,  and  not 
in  immediate  proximity  to  it.  As  the  reel  was  left  it  was  entirely 
safe.  It  was  not  possible  for  a  slight  or  accidental  movement  to  set  it  in 
motion  so  as  to  injure  others,  as  in  the  case  of  Lane  v.  Atlantic  Works, 
ubi  supra.  The  reel  was  large  and  cumbersome  and  required  active 
effort  on  the  part  of  a  number  of  children  to  move  it,  from  the  place 
where  it  had  been  left,  on  to  the  traveled  part  of  the  highway,  and  set 
it  in  motion.  And  in  order  to  injure  the  plaintiff  or  any  other  traveler 
on  the  highway  it  was  necessary  that  it  should  be  set  in  motion  at  a 
time  when  the  plaintiff  or  other  travelers  were  passing  along  the  high- 
way. In  other  words,  in  order  to  render  the  defendant  liable,  it  must 
appear,  not  only  tlaat  it  should  have  anticipated  that  in  the  ordinary 
course  of  events  school  children  would  take  the  reel  from  the  position 
where  it  had  been  securely  left  outside  the  traveled  part  of  the  road, 
but  that  they  would  set  it  in  motion  on  the  highway  under  such  cir- 
cumstances that  it  was  liable  to  injure  a  traveler  thereon.  It  seems 
to  us  that,  conceding  that  there  was  evidence  of  negligence  on  the  part 
of  the  defendant  in  leaving  the  reel  where  its  servants  did,  they  could 
not  be  required  to  anticipate  that  this  would  happen  in  the  ordinary 
course  of  events,  and,  therefore,  that  the  negligence  was  too  remote. 
See  Speake  v.  Hughes  (1904),  1  K.  B.  138. 

Exceptions  overruled. 


SECT.  IV.]  PEOPLE  V.    LEWIS.  289 

PEOPLE  V.  LEWIS. 

Supreme  Couht  of  California.     1899. 

[Reported  l:i4  CaL  o51.] 

Temple,  J.^  .  .  .  Defendant  and  deceased  were  brothers-in-law,  and 
not  altogether  friendly,  although  they  were  on  speaking  and  visiting 
terms.  On  the  morning  of  the  homicide  the  deceased  visited  the  resi- 
dence of  the  defendant,  was  received  in  a  friendly  manner,  but  after  a 
while  an  altercation  arose,  as  a  result  of  which  defendant  shot  deceased 
in  the  abdomen,  inflicting  a  wound  that  was  necessarily  mortal.  Farrell 
fell  to  the  ground,  stunned  for  an  instant,  but  soon  got  up  and  went 
into  the  house,  saying:  ''Shoot  me  again;  I  shall  die  anyway."  His 
strength  soon  failed  him,  and  he  was  put  to  bed.  Soon  afterward, 
about  how  long  does  not  appear,  but  within  a  very  few  minutes,  when 
no  other  person  was  present  except  a  lad  about  nine  years  of  age, 
nephew  of  the  deceased  and  son  of  the  defendant,  the  deceased  pro- 
cured a  knife  and  cut  his  throat,  inflicting  a  ghastly  wound  from  the 
eflfect  of  which,  according  to  the  medical  evidence,  he  must  necessarily 
have  died  in  five  minutes.  The  wound  inflicted  bj'  the  defendant  sev- 
ered the  mesenteric  artery,  and  medical  witnesses  testified  that  under 
the  circumstances,  it  was  necessarily  mortal,  and  death  would  ensue 
within  one  hour  from  the  effects  of  the  wound  alone.  Indeed,  the  evi- 
dence was  that  usually  the  effect  of  such  a  wound  would  be  to  cause 
death  in  less  time  than  that,  but  possibly  the  omentum  may  have  filled 
the  wound,  and  thus,  by  preventing  the  flow  of  the  blood  from  the 
body,  have  stayed  its  certain  effect  for  a  short  period.  Internal  hemor- 
rhage was  still  occurring,  and,  with  other  effects  of  the  gunshot  wound, 
produced  intense  pain.  The  medical  witnesses  thought  that  death  was 
accelerated  by  the  knife  wound.  Perhaps  some  of  them  considered  it 
the  immediate  cause  of  death. 

Now,  it  is  contended  that  this  is  a  case  where  one  languishing  from 
a  mortal  wound  is  killed  by  an  intervening  cause,  and,  therefore,  de- 
ceased was  not  killed  b3'  Lewis.  To  constitute  manslaughter,  the 
defendant  must  have  killed  some  one,  and  if,  though  mortallj'  wounded 
by  the  defendant,  Farrell  actualh-  died  from  an  independent  intervening 
cause,  Lewis,  at  the  most,  could  only  be  guiltv  of  a  felonious  attempt. 
He  was  as  eflectually  prevented  from  killing  as  he  would  have  been  if 
some  obstacle  had  turned  aside  the  bullet  from  its  course  and  left 
Farrell  unwounded.  And  they  contend  that  the  intervening  act  was 
the  cause  of  death,  if  it  shortened  the  life  of  Farrell  for  any  period 
whatever. 

The  attorney  general  does  not  controvert  the  general  proposition 
here  contended  for,  but  argues  that  the  wound  inflicted  by  the  defend- 

■^  Part  of  the  opiuiou  is  omitted.  —  Ed. 


290  PEOPLE    V.    LEWIS.  [CHAP.    III. 

ant  was  the  direct  cause  of  the  throat  cutting,  and,  therefore,  defendant 
is  criniinally  responsible  for  the  death.  He  ilhis-tiates  his  position  In- 
supposing  a  case  of  one  dangerously  vvounded,  and  whose  wounds  had 
been  bandaged  by  a  surgeon.  He  says,  suppose  through  the  fever  aud 
pain  consequent  upon  tiie  wound  the  patient  becomes  frenzied  and  tears 
away  the  bandage,  and  thus  accelerates  his  own  death;  would  not  the 
defendant  be  responsible  for  a  homicide?  Undoubtedly  he  would  be, 
for  in  the  ease  supposed  the  deceased  died  from  the  wound,  aggra- 
vated, it  is  true,  by  the  restlessness  of  the  deceased,  but  still  the  wound 
inllicted  b}'  the  defendant  produced  death.  Whether  such  is  the  case 
here  is  the  question. 

The  attorney  general  seems  to  admit  a  fact  which  I  do  not  concede, 
that  the  gunshot  wound  was  not,  when  Farrell  died,  then  itself  directh' 
contributory  to  the  death.  I  think  the  jury  were  warranted  in  finding 
that  it  was.  But  if  the  deceased  did  die  from  the  effect  of  the  knife 
wound  alone,  no  doubt  the  defendant  would  be  responsible,  if  it  was 
made  to  appear,  and  the  jur^'  could  have  found  from  the  evidence,  that 
the  knife  wound  was  caused  b\-  the  wound  inflicted  b}'  the  defendant 
in  the  natural  course  of  events.  If  the  relation  was  causal,  and  the 
wounded  condition  of  the  deceased  was  not  mereh^  the  occasion  upon 
which  another  cause  intervened,  not  produced  bj-  the  first  wound  or 
related  to  it  in  other  than  a  causal  way,  then  defendant  is  guilty  of  a 
homicide.  But,  if  the  wounded  condition  only  afforded  an  opportunit}' 
for  another  unconnected  person  to  kill,  defendant  would  not  be  guilt}' 
of  a  homicide,  even  though  he  had  inflicted  a  mortal  wound.  In  such 
case,  I  think,  it  would  be  true  that  the  defendant  was  thus  prevented 
from  killing. 

The  case,  considered  under  this  view,  is  further  complicated  from  the 
fact  that  it  is  impossible  to  determine  whether  deceased  was  induced  to 
cut  his  throat  through  pain  produced  by  the  wound.  May  it  not  have 
been  from  remorse,  or  from  a  desire  to  shield  his  brother-in-law?  In 
either  case,  the  causal  relation  between  the  knife  wound  and  the  gun- 
shot wound  would  seem  to  be  the  same.  In  either  case,  if  defendant  had 
not  shot  the  deceased,  the  knife  wound  would  not  have  been  inflicted. 

Suppose  one  assaults  and  wounds  another,  intending  to  take  life,  but 
the  wound,  thougli  painful,  is  not  even  dangerous,  and  the  wounded 
man  knows  that  it  is  not  mortal,  and  yet  takes  his  own  life  to  escape 
pain,  would  it  not  be  suicide  only?  Yet  the  wound  inflicted  by  the 
assailant  would  have  the  same  relation  to  death  which  the  original 
wound  in  this  case  has  to  the  knife  wound.  The  wound  induced  the 
suicide,  but  the  wound  was  not,  in  the  usual  course  of  things,  the  cause 
of  the  suicide. 

Though  no  case  altogether  like  this  has  been  found,  3'et,  as  was  to 
have  been  expected,  the  general  subject  has  often  been  considered.  In 
1  Hale's  Pleas  of  the  Crown,  428,  the  law  is  stated.  So  far  as  mate- 
rial here,  his  views  may  be  thus  summarized  :  1.  If  one  gives  another 
a  dangerous  wound  which  might  by  verv  skilful  treatment  be  cured. 


SECT.    IV.]  PEOPLE   V.    LEWIS.  291 

and  is  not,  it  is  a  case  of  homicide.  2.  If  one  inflicts  a  dangerous 
wound,  and  the  man  dies  from  the  treatment,  "  if  it  can  clearly  appear 
that  the  medicine  and  not  the  wound  was  the  cause  of  the  death,  it 
seems  it  is  not  homicide,  but  then  it  must  appear  clearl}-  and  certainly 
to  be  so."  3.  If  one  receives  a  wound,  not  in  itself  mortal,  and  fever 
or  gangrene  sets  in  because  of  improper  treatment  or  unruly  conduct  of 
the  patient,  and  death  ensues,  it  is  homicide,  "for  that  wound,  though 
it  was  not  the  immediate  cause  of  his  deoth,  yet  it  was  the  mediate 
cause  thereof,  and  the  fever  or  gangrene  was  the  immediate  cause  of 
his  death,  yet  the  wound  was  the  cause  of  the  gangrene  or  fever,  and 
so,  consequently,  is  causa  rausatiy  4.  One  who  hastens  the  death  of 
a  person  languishing  with  a  mortal  disease  is  guilt}'  of  a  homicide,  for 
the  death  is  not  merely  by  a  visitation  of  Providence,  but  the  hurt  has- 
tens it,  and  the  wrongdoer  cannot  thus  apportion  the  responsibility, 
etc.  It  would  make  no  difference,  I  presume,  if  the  person  killed 
was  languishing  from  a  mortal  wound,  rather  than  from  an  ordinary 
disease. 

In  State  v.  Scates,  5  Jones,  420,  a  child  was  found  dead,  badly 
burned,  and  with  a  wound  from  a  blow  on  the  head.  The  burning  was 
admitted  b}"  defendant,  but  the  blow  was  not,  and  it  was  not  proven 
who  inflicted  it.  The  medical  witness  thought  the  burning  was  the 
primary  cause  of  death,  but  the  blow  may  have  hastened  it.  The  jury 
was  told  that  if  it  was  doubtful  which  was  the  immediate  cause  of  death, 
the}'  must  acquit,  but  if  they  found  that  the  burning  was  the  primary 
cause  of  death,  and  the  blow  only  hastened  it,  they  could  convict. 

The  case  was  reversed,  the  appellate  court  holding  that  the  blow 
might  have  been  the  independent  act  of  another,  and,  if  it  hastened  the 
death,  it,  and  not  the  burning,  vvas  the  cause  of  death. 

In  Bush  V.  Commonwealth,  78  Ky.  268.  the  deceased  received  a 
wound  not  necessarily  mortal,  and,  in  consequence,  was  taken  to  a 
hospital,  where  she  took  scarlet  fever  from  a  nurse  and  died  of  llie 
fever.  The  court  said:  ''When  the  disease  is  a  consequence  of  the 
wound,  although  the  proximate  cause  of  the  death,  the  person  inflicting 
the  wound  is  guilty,  because  the  death  can  l)e  traced  as  a  result  natu- 
rally flowing  from  the  wound  and  coming  in  the  natural  order  of  things  ; 
but  when  there  is  a  supervening  cause,  not  naturally  intervening  by 
reason  of  the  wound,  the  death  is  by  visitation  of  Providence,  and  not 
from  the  act  of  the  party  inflicting  the  wound.  ...  If  the  death  was 
not  connected  with  the  wound  in  the  regular  ch.ain  of  causes  and  con- 
sequences, there  ought  not  to  be  any  responsibility." 

The  last  case,  in  my  opinion,  so  far  as  it  goes,  correctly  states  the 
]aw.  The  facts  of  this  case  do  not  bring  it  strictly  within  any  of  the 
propositions  found  in  Hale's  Pleas  of  the  Crown.  The  second  and  third 
propositions  both  predicate  a  wound  not  necessarily  mortal.  What  the 
law  would  have  been  in  the  second  case  had  the  wound  been  mortal, 
and  the  applications  had  hastened  the  death,  is  not  stated.  It  seems 
to  me,  however,  the  case  of  a  person  already  languishing  from  a  mortal 


292  PEOPLE   V.    LEWIS.  [cHAP.    III. 

wound  is  precisely  that  of  one  suffering  from  a  mortal  disease.  Cer- 
tuinly  the  wilful  and  unlawful  killing  of  such  a  person  would  be  a  fel- 
ony, and  it  cannot  be  true  that  the  first  offender  and  the  last  can  each 
be  guilty  of  murdering  the  same  man,  —  if  they  had  no  connection  with 
each  other,  and  both  wounds  were  not  actively  operating  to  produce 
death  when  it  occurred. 

But  why  is  it  that  one  who  inflicts  a  wound  not  mortal  is  guilty  of  a 
homicide,  if  through  misconduct  of  the  patient  or  unskilful  treatment 
gangrene  or  fever  sets  in,  producing  a  fatal  termination,  —  when,  if  it 
can  be  clearly  made  to  appear  that  the  n)edicine  and  not  the  wound 
was  the  cause  of  the  death,  he  is  not  guilty  of  a  homicide?     In  each 
case  if  the  wound  had  not  been,  the  treatment  would  not  have  been, 
and  the  man  would  not  then  have  died.     In  each  case  the  wound  occa- 
sioned the  treatment  which  caused  or  contributed  to  the  death.     The 
reason,  I  think,  is  found  in  the  words  advisedly  used  in  the  last  sen- 
tence.     In  the  one  case  the   treatment  caused  the  death,  and  in  the 
other  it  merely  contributed  to  it.     In  one  case  the  treatment  aggravated 
the  wound,  but  the  wound  thus  aggravated  produced  death.     In  the 
other  the  wound,  through  the  ocicasion  of  the  treatment,  did  not  con- 
tribute to  the  death,  which  occurred  without  any  present  contribution 
to  the  natural  effect  of  the  medicine  from  the  wound.     Take,  for  in- 
stance, the  giving  of  a  dose  of  morphine,  by  mistake,  sufficient  to  end 
life  at  once.     In  such  case  it  is  as  obvious  that  the  treatment  produced 
death  as  it  would  have  been  had  the  physician  cut  off  his  patient's  head. 
But  see  People  v.  Cook,  39- Mich.  236  ;  33  Am.  Rep.  380.    In  this  case 
it  appears  that  defendant  has  inflicted  a  dangerous  wound,  but  it  was 
contended  by  the  defence   that  death   was  caused  by  an  overdose  of 
morphine.     Defendant  asked  an  instruction  as  follows:   ''If  the  jury 
believe  that  the  injury  inflicted  by  the  prisoner  would  have  been  fatal, 
but  if  death  was  actually  produced  by  morphine  poisoning,  they  must 
acquit."    The  instruction  was  refused,  but  the  jury  were  told  that  if  the 
wound  was  not  in  itself  mortal,  and  death  was  caused  solely  by  the 
morphine,  they  must  acquit.     The  action  of  the  trial  court  was  sus- 
tained, on  the  ground  that  a  mortal  wound  had  been  given  which  neces- 
sitated medical   treatment ;    that  the   pliysicians   were   competent  and 
acted  in  good  faith  ;   and  that  it  was.  not  made  clearly  to  appear  that 
the  morphine  solely  produced  death,  and   that  the  wound  did  not  at 
all  contribute  to  the  death  at  that  time.     Under  the  authorities  this 
was  equivalent  to  a  finding  that  the  wound  did  not  contribute  to  the 
death. 

This  case  differs  from  that  in  this,  that  here  the  intervening  cause, 
which  it  is  alleged  hastened  death,  was  not  medical  treatment,  designed 
to  be  helpful,  and  which  the  deceased  was  compelled  to  procure  because 
of  the  wound,  but  was  an  act  intended  to  produce  death,  and  did  not 
result  from  the  first  wound  in  the  natural  course  of  events.  But  we 
have  reached  the  conclusion  by  a  course  of  argument  unnecessarily 
proli.x;,  except  from  a  desire  to  consider  fully  the  earnest  and  able  ar- 


SECT.    IV.]      COLE    V.    GERMAX   SAVINGS    &    LOAN   SOCIETY.  293 

gument  of  the  defendant,  that  the  test  is  —  or  at  least  one  test  — 
whether,  when  the  death  occurred,  the  wound  inflicted  by  the  defend- 
ant did  contribute  to  the  event.  If  it  did,  although  other  independent 
causes  also  contributed,  the  causal  relation  between  the  unlawful  act:* 
of  the  defendant  and  the  death  has  been  made  out.  Here,  when  the 
throat  was  cut,  Farrell  was  not  merel}-  languishing  from  a  mortal 
wound.  He  was  actually  dying, — and  after  the  throat  was  cut  he 
continued  to  languish  from  l)Oth  wounds.  Drop  by  drop  the  life  cur- 
rent went  out  from  both  wounds,  and  at  the  very  instant  of  death  the 
gunshot  wound  was  contributing  to  the  event.  If  the  throat  cutting 
had  been  by  a  third  person,  uiicoiiuected  with  the  defendant,  he  might 
be  guilt}' ;  for,  althouiiii  a  man  cannot  be  killed  twice,  two  persons, 
acting  independently,  may  contribute  to  his  death,  and  each  be  guilty 
of  a  homicide.  A  person  dying  is  still  in  life,  and  may  be  killed  ;  but 
if  he  is  dying  from  a  wound  given  by  another,  both  may  properly  be 
said  to  have  contributed  to  his  death. 


COLE  V.  GERMAN  SAVINGS  &  LOAN  SOCIETY. 

Circuit  Court  of  Appeals,  1903. 

[Report-d  124  Fed.   116.] 

The  plaintiff,  Viola  Cole,  sued  the  German  Savings  &  Loan  Society 
for  damages  which  she  alleged  were  the  result  of  its  negligence  in  the  care 
and  operation  of  its  elevator,  and  at  the  close  of  the  trial  these  facts 
were  established :  About  4  o'clock  in  the  afternoon  of  a  bright  sunshiny 
day  in  May,  the  plaintiff,  a  lady  32  years  of  age,  entered  the  hall  of  a 
building  of  the  German  Savings  &  Loan  Society  for  the  purpose 
of  riding  on  an  elevator  to  an  upper  story.  The  well  of  this  elevator 
was  about  forty  feet  distant  from  the  entrance  to  the  hall,  into  which 
it  opened.  It  was  separated  from  the  hall  by  a  door,  which  at  the  time 
was  standing  open  not  more  than  ten  inches.  As  the  plaintiff  passed 
through  this  hall,  a  boy  who  was  a  stranger  to  her,  and  who  was  not 
employed  by  or  authorized  to  act  for  the  defendant,  but  who  had 
been  seen  by  one  of  the  witnesses  prior  to  that  time  endeavoring  to 
operate  the  elevator  once,  and  riding  upon  it  and  visiting  the  boy  in 
charge  of  it  a  dozen  times,  hurriedly  passed  the  plaintiff,  seized  the 
sliding  door  to  the  elevator  shaft,  pushed  it  back  as  far  as  it  would  go, 
and  stepped  back.  The  elevator  was  at  an  upper  story  in  charge  of  its 
regular  operator.    The  plaintiff  supposed  that  the  strange  boy  was  the 


294  COLE   V.    GET?MAN   SAVINGS   &    LOAN    SOCIETY.     [CIIAP.  III. 

operator  of  the  elevator,  stepped  into  the  shaft,  and  fell  lOl?  feet 
to  its  bottom,  and  was  seriously  injured.  The  hall  was  dark  and  gloomy. 
It  was  difficult  to  see  the  elevator  at  the  lower  floor,  but  it  was  not 
impossible  to  see  it.  When  it  was  not  at  that  floor,  nothing  but  dark- 
ness was  \asible  in  the  well  below  it.  There  was  no  artificial  light  in  the 
hall  at  the  time  of  the  accident,  although  there  were  the  means  to  make 
an  electric  light,  which  was  often  lighted,  just  in  front  of  the  door 
of  the  shaft.  This  door  was  furnished  with  a  hook,  which,  when  the 
door  was  closed,  entered  a  slot  and  grasped  a  bar.  But  the  door  could 
be  opened  from  the  outside,  even  when  it  was  latched  by  lifting  it  and 
pushing  it  back.  When  the  employee  in  charge  of  the  elevator  jammed 
the  door,  it  would  bound  back  and  slide  open  from  1  to  10  inches. 
The  court  instructed  the  jury,  upon  this  state  of  facts,  to  return  a  ver- 
dict for  the  defendant,  and  this  charge,  together  with  certain  rulings 
rejecting  proffered  testimony,  is  assigned  as  error. 

Sanborn,  C.  J.  The  crucial  question  in  this  case  is  whether  or  not 
the  negligence  of  the  defendant  was  the  proximate  cause  of  the  injury 
of  the  plaintiff,  so  that,  in  the  legal  acceptation  of  that  term,  it  con- 
tributed to  her  hurt.  "Causa  proxima,  non  remota,  spectatur,"  and 
those  damages  which  are  the  result  of  remote  causes  form  a  part  of  that 
large  mass  of  resulting  losses  styled  "damnum  absque  injuria,"  for 
which  the  law  permits  no  recovery.  A  clear  conception  of  the  test 
which  distingTiishes  the  proximate  from  the  remote  cause  is,  therefore, 
the  first  and  the  indispensable  prerequisite  to  a  true  answer  to  the 
question  which  this  case  presents ;  for  by  that  test  alone  must  the  issue 
here,  in  all  the  varying  garbs  in  which  the  ingenuity  of  counsel  has 
clothed  it,  be  tried  and  be  ultimately  determined.  This  test  is  most 
clearly  seen  from  the  standpoint  of  the  injury  inflicted,  and  is  well  dis- 
closed by  these  indisputable  principles  of  the  law: 

An  injury  that  is  the  natural  and  probable  consequence  of  an  act  of 
negligence  is  actionable,  and  such  an  act  is  the  proximate  cause  of 
the  injury.  But  an  injury  which  could  not  have  been  foreseen  nor 
reasonably  anticipated  as  the  probable  result  of  an  act  of  negligence 
is  not  actionable,  and  such  an  act  is  either  the  remote  cause,  or  no 
cause  whatever,  of  the  injury.  An  injury  that  results  from  an  act  of 
negligence,  but  that  could  not  have  been  foreseen  or  reasonably  antici- 
pated as  its  probable  consequence,  and  that  would  not  have  resulted 
from  it,  had  not  the  interposition  of  some  new  and  independent  cause 
interrupted  the  natural  sequence  of  events,  turned  aside  their  course, 
and  produced  it,  is  not  actionable.  Such  an  act  of  negligence  is  the 
remote,  and  the  independent  intervening  cause  is  the  proximate,  cause 
of  the  injury.  A  natural  consequence  of  an  act  is  the  consequence  which 
ordinarily  follows  it  —  the  result  which  may  be  reasonably  anticipated 
from  it.  A  probable  consequence  is  one  that  is  more  likely  to  follow  its 
supposed  cause  than  it  is  to  fail  to  follow  it.  Chicago,  St.  P.,  M.  &  O. 
Ry.  Co.  V.  Elliott,  55  Fed.  949,  952,  5  C.  C.  A.  347,  350,  20  L.  R.  A. 


SECT.    I\.]      COLE    V.    GERMAN   SAVINGS    &    LOAN   SOCIETY.  295 

582;  Railway  Co.  v.  Kellogg,  94  U.  S.  469,  475,  24  L.  Ed.  256;  Hoag  v. 
Railroad  Co.,  85  Pa.  293,  298,  299,  27  Am.  Rep.  653. 

Let  us  try  the  issue  in  hand  by  these  familiar  rules.  It  goes  with- 
out saying  that  the  injury  of  the  plaintiff  was  the  natural  and  probable 
consequence  of  the  act  of  the  trespasser  who  preceded  the  plaintiff  to 
the  elevator,  opened  the  door  of  the  well,  and  stepped  back,  thus  in- 
viting her  to  pass  into  the  shaft.  No  one  can  contemplate  this  act  for 
a  moment  without  a  clear  conviction  that  the  fall  and  the  injury 
were  its  natural  and  probable  result.  This  act  was,  therefore,  a  proxi- 
mate cause  of  the  injury  —  an  act  of  negligence  which  formed  the 
basis  for  an  action  for  damages  against  the  strange  boy  who  committed 
it.  It  was  not  only  the  nearest  cause  of  the  disaster  in  point  of  time, 
but  it  was  the  moving  and  efficient  cause  —  the  cause  without  which, 
so  far  as  finite  vision  can  see,  the  accident  would  never  have  occurred. 

Counsel  for  the  plaintiff  do  pot  deny  this  obvious  conclusion,  but 
they  insist  that  the  negligence  of  the  strange  boy  merely  concurred  with 
the  acts  of  omission  and  commission  of  the  defendant ;  and  they  invoke 
the  conceded  rule  that  it  is  no  defen.se  to  the  damages  resulting  from 
an  act  of  negligence  that  the  carelessness  of  another  concurred  with  the 
negligence  of  the  defendant  to  produce  the  injury.  Among  other 
authorities  they  cite  the  case  of  Union  Pac.  R.  Co.  v.  Callaghan,  56 
Fed.  988,  993,  994,  6  C.  C.  A.  205,  210,  in  support  of  this  position.  In 
that  case  the  negligence  of  a  conductor  of  a  train  of  cars  who  recklessly 
directed  his  engineer  to  disregard  a  signal  to  stop,  wliich  was  given  at 
a  station  they  were  passing,  concurred  with  the  succeeding  failure  of  the 
engineer  to  observe  and  heed  other  signals  of  danger,  and  led  him  to 
drive  the  train  upon  a  defective  bridge,  and  this  court  held  that  the 
concurring  negligence  of  the  engineer  was  dependent  upon  the  prior 
reckless  order  of  the  conductor;  that  the  engineer's  negligence  was  a 
dependent,  and  not  an  independent,  cause  of  the  disaster,  that  it  did 
not  break  and  turn  aside  the  natural  sequence  of  events  between  the 
recklessness  of  the  conductor  and  the  accident,  but  simply  permitted 
that  act  to  work  out  its  natural  and  probable  result;  and  that  for  this 
reason  it  constituted  no  defense  to  the  action  for  damages  for  the 
negligence  of  the  conductor.    In  the  opinion  this  court  said : 

"The  independent  intervening  cause  that  will  prevent  a  recovery 
on  account  of  the  act  or  omission  of  a  wrongdoer  must  be  a  cause  which 
interrupts  the  natural  sequence  of  events,  turns  aside  their  course, 
prevents  the  natural  and  probable  result  of  the  original  act  or  omission, 
and  produces  a  different  result,  that  could  not  have  been  reasonably 
anticipated."    56  Fed.  993,  994,  6  C.  C.  A.  210. 

But  it   also   said: 

"No  act  contributes  to  an  injury,  in  the  legal  acceptation  of  that 
term,  unless  it  is  a  proximate  cause  of  that  injury  —  unless  it  is  near 


296  COLE   V.    GERMAN   SAVINGS    &    LOAN   SOCIETY.     [CHAP.  III. 

to  it  in  the  order  of  causation.     Jacobus  v.  Railway  Co.,  20  ]\Iinn. 
125,  134  [(Gil.  110),  18  Am.  Rep.  360]."    56  Fed.  990,^6  C.  C.  A.  207. 

The  test  of  the  liability,  therefore,  in  cases  of  concurring  negligence 
is  the  same  that  it  is  in  all  other  actions  for  negligence.  It  is  the  true 
answer  to  the  questions:  Was  the  injury  the  natural  and  probable 
consequence  of  the  act  on  which  the  action  is  based?  Was  it  reasonably 
to  be  anticipated  from  that  act?  If  it  was,  the  action  may  be  main- 
tained, although  the  negligence  of  another  concurred  to  produce 
the  untoward  result.  If  it  was  not,  the  act  of  negligence  will  not  sus- 
tain an  action,  whether  the  act  of  another  concurred  or  failed  to  concur 
to  produce  it.  A  negligent  act  from  which  an  injury  could  not  have 
been  foreseen  or  reasonably  anticipated  is  too  remote  in  the  line 
of  causation  to  sustain  an  action  for  an  injury  in  every  case,  and  the 
concurring  negligence  of  another  cannot  make  it  less  remote,  nor 
charge  him  who  committed  it  with  responsibility  for  it  to  which  he 
would  not  have  been  liable  to  answer  in  the  absence  of  the  negligence 
of  the  third  party. 

It  is  not  here  asserted  that  there  may  not  be  many  cases  in  which 
one  who  has  committed  a  negligent  act  may  be  liable  for  an  injury 
which  is  the  result  of  his  wrongful  act  and  of  the  concurring  negligence 
of  another,  but  which  would  not  have  followed  in  the  absence  of  the 
recklessness  of  the  third  party.  The  succeeding  or  concurring  negli- 
gence of  another  and  its  evil  consequences  may  be  the  natural  and 
probable  result  of  a  defendant's  act  of  negligence,  so  that  the  latter  may 
be  actionable.  But,  unless  the  ultimate  injury  is  the  natural  and  prob- 
able consequence  of  the  defendant's  act  of  negligence,  that  act  is  not 
the  proximate  cause  of  the  injury,  and  no  action  can  be  maintained  upon 
it,  whether  the  succeeding  injury  results  from  that  act  alone  or  from 
that  act  and  the  concurring  or  succeeding  negligence  of  a  stranger. 
In  other  words,  the  concurring  negligence  of  another  cannot  trans- 
form an  act  of  "negligence  which  is  so  remote  a  cause  of  an  injury  that  it 
is  not  actionable  into  a  cause  so  proximate  that  an  action  can  be  main- 
tained upon  it.  It  cannot  create  a  liability  against  one  who  does  not 
legally  cause  it,  or  make  an  injury  the  natural  and  probable  result  of 
a  prior  act  of  negligence  which  was  not,  or  would  not  have  been,  such 
a  result  in  its  absence.  No  act  contributes  to  an  injury,  in  the  legal 
acceptation  of  that  term,  unless  it  is  a  proximate  cause  of  that  injury — 
unless  that  injury  could  and  ought  to  have  been  foreseen  or  reasonably 
anticipated  as  its  probable  consequence.  The  conclusion  inevitably 
follows  that  the  concurring  negligence  of  the  trespasser  in  this  case 
does  not  answer  the  primary  question  which  the  action  presents.  It 
leaves  it  entirely  undetermined,  and  that  question  still  recurs.  W^as 
the  injury  of  the  plaintiff  the  natural  and  probable  result  of  the  acts 
or  omissions  of  the  defendant?    Let  us  see. 

That  negligence  consisted  of  permitting  such  a  degree  of  darkness 
in  the  hall  opposite  the  door  which  opened  into  the  well  of  the  elevator 


SECT.  IV.]   COLE  V.    GERM.'USr  SAVINGS  &  LOAN  SOCIETY.        297 

that  it  was  difficult  to  see  whether  or  not  the  elevator  was  there;  of 
allowing  boys  to  visit  in,  ride  upon,  and  sometimes  to  operate  the  eleva- 
tor; of  allowing  the  boy  who  opened  the  door  to  the  well  to  ride  and 
visit  in  the  elevator  about  a  dozen  times,  anrl  to  endeavor  to  oper- 
ate it  at  least  once;  of  neglecting  to  provide  a  lock  for  the  door  which 
would  prevent  any  one  from  opening  it  from  the  outside;  and  of  per- 
mitting the  door  to  stand  open  from  one  to  ten  inches.  The  burden  of 
proof  was  upon  the  plaintiff  to  establish  a  state  of  facts  which  would 
naturally  lead  to  the  conclusion  that  her  entrance  and  fall  in  the  well 
were  the  natural  and  probable  consequences  of  these  acts  of  negligence 
committed  by  the  defendant.  If  she  failed  to  successfully  bear  this 
burden,  she  was  entitled  to  no  damages  from  the  Savings  &  Loan 
Society.  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.  v.  Elliott,  55  Fed.  949,  5 
C.  C.  A.  347,  20  L.  R.  A.  582;  Union  Pac.  Ry.  C^o.  v.  Callaghan,  56 
Fed.  988,  993,  6  C.  C.  A.  205,  210.  Where  is  the  evidence  to  sustain 
such  a  conclusion?  The  best  e\'idence  upon  such  an  issue  is  the  testi- 
mony of  experience,  because  what  has  been  is  our  best  guide  to  what 
will  be.  The  challenged  acts  and  omissions  of  the  defendant  had  been 
in  operation  for  many  months.  If  they  had  produced  such  a  conse- 
quence as  the  fall  and  injury  of  the  plaintiff  in  the  past,  that  fact 
would  have  raised  a  strong  presumption  that  this  was  their  natural 
tendency.  If  they  had  produced  no  such  result,  the  counter  presump- 
tion was  not  less  strong.  It  is  for  this  reason  that  courts  frequently 
speak  of  the  fact  that  no  such  injuries  as  those  upon  which  the  actions 
under  their  consideration  are  based  have  occurred  before  as  persuasi^■e 
evidence  that  the  disasters  could  not  have  been  foreseen  or  reasonably 
anticipated  as  the  probable  result  of  the  acts  upon  which  the  suits  are 
based.  Cleveland  v.  New  Jersey  Steamboat  Co.,  68  N.  Y.  306,  312. 
There  is  no  evidence  in  this  case  that  any  such  accident  or  injury  as 
that  from  which  the  plaintiff  suffers  ever  followed  the  defendant's  acts 
of  negligence  before  the  plaintiff  fell  into  the  well.  Not  only  this,  but 
there  is  no  evidence  that  the  accident  and  injury  to  the  plaintiff  resulted 
from  these  acts  or  omissions,  but  positive  and  convincing  testimony 
that  they  were  produced  by  the  wrongful  act  of  another. 

Another  class  of  evidence  sometimes  presented  in  cases  of  this  nature 
consists  of  the  testimony  of  witnesses  that  the  negligence  of  the  defend- 
ant which  forms  the  basis  of  the  action  has  at  times  placed  them  in 
imminent  danger  of  like  accidents,  from  which  they  have  hardly 
escaped  without  injury.  But  this  record  is  barren  of  e\ddence  of  this 
character.  Experts  sometimes  come  to  say  that  a  piece  of  machinery 
was  so  defective,  or  the  method  of  its  operation  of  so  dangerous  a  char- 
acter, that  in  their  opinion  the  condition  or  the  method  of  operation 
naturally  tended  to  an  accident  or  injury  of  the  nature  of  that  upon 
which  the  action  on  trial  is  based.  But  no  expert  gave  such  testimony 
in  the  case  at  bar.  The  record  is  barren  of  all  testimony  upon  the 
subject,  except  proof  of  the  acts  and  omissions  of  the  defendant  which 


298  COLE   V.    GERMAN   SAVINGS    &    LOAN   SOCIETY.     [CHAP.  III. 

have  been  recited,  and  of  the  fact  that  a  proximate  cause  of  the  acci- 
dent was  the  act  of  the  trespasser  who  opened  the  door  and  extended  to 
the  phiintiff  the  invitation  to  step  into  the  darkness  and  to  fall,  which  she 
accepted.  There  is  nothing  in  the  evidence  to  the  effect  that  the  de- 
fendant's acts  or  omissions  ever  had  produced,  or  ever  would  in  the 
natural  sequence  of  events  have  produced,  any  such  injury  as  that  from 
which  the  plaintiff  is  suffering,  while  the  proof  is  plenary  that  it  was  the 
act  of  the  stranger  which  actually  caused  it. 

But  counsel  seek  to  escape  from  the  natural  effect  of  this  e\'idence 
by  the  contention  that  the  voluntary  act  of  the  strange  boy  in  opening 
the  door  of  the  well  when  the  elevator  was  at  an  upper  floor  could  and 
should  have  been  foreseen  and  anticipated  as  the  probable  result  of  the 
unlocked  door,  of  the  \Tlsits  of  the  boy  upon  the  elevator,  and  of  his 
previous  attempt  to  operate  it.  This  argument  loses  sight  of  the  fact 
that  the  wrongful  act  of  this  trespasser  was  not  committed  in  operating, 
or  in  attempting  to  operate,  the  elevator,  in  riding  or  ^'isiting  upon  it,  or 
in  the  doing  of  any'  act  which  he  had  ever  done  before.  He  had  never 
opened  the  door  into  the  empty  well  and  invited  a  patron  of  the  elevator 
to  step  into  it  before  this  accident  occurred.  How  could  any  one  reason- 
ably anticipate  that  he  would  be  guilty  of  such  an  act?  The  facts  that 
he  had  \dsited  upon  the  elevator  and  had  attempted  to  operate  it  with 
the  permission  of  the  employee  in  charge  of  it  gave  no  warning  of  any 
such  purpose  on  his  part  or  of  the  probability  of  any  such  act.  Mr. 
Justice  Holmes  in  delivering  the  opinion  of  the  Supreme  Court  of 
Massachusetts  in  Burt  v.  Advertiser  Newspaper  Co.,  154  Mass.  238, 
247,  28  N.  E.  1,  6,  13  L.  R.  A.  47,  said:  "Wrongful  acts  of  indepen- 
dent third  persons,  not  actually  intended  by  the  defendant,  are  not 
regarded  by  the  law  as  natural  consequences  of  his  wrong,  and  he  is 
not  bound  to  anticipate  the  general  probability  of  such  acts,  any  more 
than  a  particular  act  by  this  or  that  indiWdual." 

The  act  of  the  strange  boy  was  a  \'iolation  of  the  law.  It  was  a  tres- 
pass upon  the  property  and  upon  the  rights  of  the  defendant.  The  de- 
fendant could  not  foresee  or  reasonably  anticipate,  and  it  was  not  re- 
quired to  anticipate  or  topro\ade  for,  \'iolations  of  the  law  and  trespasses 
upon  its  property  by  its  fellow  citizens.  The  legal  presumption  was 
that  this  boy  and  all  boys  and  men  would  obey  the  law,  would  refrain 
from  committing  trespasses  upon  the  defendant's  rights  or  property, 
and  would  discharge  their  moral  and  social  duties.  The  defendant 
had  the  right  to  indulge  in  this  presumption,  and  to  calculate  the  nat- 
ural and  probable  result  of  its  acts  and  omissions  upon  this  supposition. 
Indeed,  it  could  reckon  upon  no  other;  for  it  is  alike  impracticable 
and  impossible  to  predicate  and  administer  the  rights  and  remedies  of 
men  upon  the  theory  that  their  associates  and  fellows  will  either  vio- 
late the  laws  or  disregard  their  duties.  Little  Rock  &  M.  R.  Co.  v. 
Barry,  84  Fed.  944,  950,  28  C.  C.  A.  644,  650,  43  L.  R.  A.  349.  The 
mischievous  act  of  the  strange  boy  which  caused  the  plaintiff's  hurt 


SECT.    IV.]      COLE   V.    GERMAN   SAVINGS   &    LOAN   SOCIETY.  299 

could  not  have  been  foreseen  nor  reasonably  anticipated  as  the  probable 
result  of  the  defendant's  acts  of  negligence,  because  it  was  a  \'iolation 
of  law  and  of  duty,  and  because  there  was  nothing  in  pre xaous  experience, 
observation,  or  information  to  lead  to  such  an  anticipation.  This  con- 
cludes the  discussion  of  the  facts  relative  to  the  relations  and  situation 
of  the  parties  as  disclosed  by  the  record,  in  view  of  the  arguments  of 
the  counsel  for  the  plaintiff. 

It  is  now  no  longer  difficult  to  determine  whether  or  not  the  acts  of  the 
defendant  were  the  proximate  cause  of  the  injury  to  the  plaintiff. 

Wharton  says: 

"  Supposing  that,  had  it  not  been  for  the  intervention  of  a  responsible 
third  party,  the  defendant's  negligence  would  have  produced  no  dam- 
age to  the  plaintiff,  is  the  defendant  liable  to  the  plaintiff?  This  ques- 
tion must  be  answered  in  the  negative,  for  the  general  reason  that 
causal  connection  between  negligence  and  damage  is  broken  by  the 
interposition  of  responsible  human  action.  I  am  negligent  on  a  particu- 
lar subject-matter  as  to  which  I  am  not  contractually  bound.  Another 
person,  moving  independently,  comes  in,  and  either  negligently  or 
maliciously  so  acts  as  to  make  my  negligence  injurious  to  a  third  person. 
If  so,  the  person  so  intervening  acts  as  a  nonconductor,  and  insulates 
my  negligence,  so  that  I  cannot  be  sued  for  the  mischief  which  the  per- 
son so  intervening  directly  produces.  He  is  the  one  who  is  liable  to  the 
person  injured."    Whart.  Neg.  §  134. 

Bishop  on  Noncontract  Law,  §  42,  says : 

"  If,  after  the  cause  in  question  has  been  in  operation,  some  independ- 
ent force  comes  in  and  produces  an  injury,  not  its  natural  or  probable 
effect,  the  author  of  the  cause  is  not  responsible." 

Judge  Cooley  and  the  Supreme  Court  of  North  Carolina  say  in  his 
words : 

"  If  the  original  wrong  only  becomes  injurious  in  consequence  of  the 
intervention  of  some  distinct  wrongful  act  or  omission  by  another,  the 
injury  shall  be  imputed  to  the  last  wrong  as  the  proximate  cause,  and 
not  to  that  which  was  more  remote."  Clark  v.  Wilmington,  etc.,  R.  Co., 
109  N.  C.  430,  449,  14  S.  E.  43,  47,  14  L.  R.  A.  749. 

The   Supreme   Court   declares: 

"  The  question  always  is,  was  there  an  unbroken  connection  between 
the  wrongful  act  and  the  injury,  a  continuous  operation?  Did  the  facts 
constitute  a  continuous  succession  of  events,  so  linked  together  as  to 
make  a  natural  whole,  or  was  there  some  new  and  independent  cause 
intervening  between  the  wrong  and  the  injury?"  Railway  Company  v. 
Kellogg,  94  U.  S.  469,  475,  24  L.  Ed.  256. 

And  again: 


300  COLE   V.    GER.MAX    .SAVINGS    &    LOAX   SOCIETY,     [ciIAP.  III. 

"  The  proximate  cause  is  the  efficient  cause,  the  one  that  necessarily 
sets  the  other  causes  in  operation.  The  causes  that  are  merely  inci- 
dental, or  instruments  of  a  superior  or  controlling  agency,  are  not  the 
proximate  causes  and  the  responsible  ones."  Insurance  Company  v. 
Boon,  95  U.  S.  117,  130,  24  L.  Ed.  395. 

The  Circuit  Court  of  Appeals  for  the  Seventh  Circuit  holds  that: 

"  The  remote  cause  is  that  cause  which  some  independent  force  merely 
took  advantage  of  to  accomplish  something  not  the  probable  or  natural 
effect  thereof.  .  .  .  The  causal  connection  between  the  negligence  and 
the  hurt  is  interrupted  by  the  interposition  of  an  independent  human 
agency;  and,  as  Mr.  Wharton  expresses  the  thought,  'the  intervener 
acts  as  a  nonconductor,  and  insulates  the  negligence.'  The  test  is: 
Was  the  intervening  efficient  cause  a  new  and  independent  force,  acting 
in  and  of  itself  in  causing  the  injury  and  superseding  the  original 
wrong  complained  of,  so  as  to  make  it  remote  in  the  chain  of  causation, 
although  it  may  have  remotely  contributed  to  the  injury  as  an  occasion 
or  condition?"  Goodlander  Mill  Co.  v.  Standard  Oil  Co.,  63  Fed.  400, 
405,  11  C.  C.  A.  253,  258,  459,  27  L.  R.  A.  583. 

And  this  court  has  said : 

"An  injury  that  could  not  have  been  foreseen  or  reasonably  antici- 
pated as  the  probable  result  of  the  negligence  is  not  actionable,  nor  is 
an  injury  that  is  not  the  natural  consequence  of  the  negligence  com- 
plained of,  and  that  would  not  have  resulted  from  it,  but  for  the  inter- 
position of  some  new  independent  cause  that  could  not  have  been  an- 
ticipated." Chicago,  St.  P.,  M.  &  O.  Ry.  Co.  v.  Elliott,  55  Fed.  949, 
951,  952,  5  C.  C.  A.  347,  349. 

Try  this  case  by  any  of  these  tests,  and  the  result  is  the  same.    The 
independent  voluntary  act  of  the  strange  boy  who  opened  the  door  of 
the  elevator  and  invited  the  plaintiff  to  enter  the  well  was  incapable  of 
anticipation.    No  one  could  have  foreseen  it  as  the  probable  consequence 
of  the  acts  or  omissions  of  the  defendant.    It  broke  the  chain  of  causa- 
tion between  the  prior  negligence  of  the  defendant  and  the  injury  of  the 
plaintiff,  insulated  the  defendant's  acts  and  omissions  from  the  plaintiff's 
hurt,  and  imposed  upon  the  boy  who  willed  and  committed  the  act 
which  produced  the  injury  the  sole  liability  for  the  damages  which  re- 
sulted from  it.    The  acts  and  omissions  of  the  defendant  were  too  re- 
mote to  legally  contribute  to  the  injury  or  to  impose  liability  for  it. 
They  were  not  a  proximate  cause  of  the  accident,  and  the  mischievous 
and  wrongful  act  of  the  strange  boy  was  the  sole  mo\ang  efficient  prox- 
imate cause  that  produced  it.     Railroad  Co.  v.  Barry,  84  Fed.  944,  950, 
28  C.  C.  A.  644,  650,  43  L.  R.  A.  349;  Railroad  Co.  v.  Elliott,  55  Fed. 
949,  952,  5  C.  C.  A.  347,  350;  Finalyson  v.  Milling  Co.,  67  Fed.  507,  512, 
14  C.  C.  A.  492,  496;  Railway  Co.  r.  Bennett,  69  Fed.  525,  16  C.  C. 
A.  300;  Railway  Co.  v.  Callaghan,  56  Fed.  988,  993,  6  C.  C.  A.  205, 


SECT.    IV.]      COLE   V.    GERMAX   SA\nXGS    &    LOAN   SOCIETY.  301 

210;  Railway  Co.  v.  Moseley,  57  Fed.  921,  926,  6  C.  C.  A.  641,  646; 
Insurance  Co.  v.  IVIelick,  65  Fed.  178,  184,  12  C.  C.  A.  544,  .550,  27 
L.  R.  A.  629;  Goodlander  Mill  Co.  v.  Standard  Oil  Co.,  63  Fed.  400, 
11  C.  C.  A.  253;  Laidlaw  v.  Sage,  158  N.  Y.  73,  98-102,  52  N.  E.  679, 
44  L.  R.  A.  216;  Trewatha  v.  Milling  Co.,  96  Cal.  494,  500,  28  Pac. 
571,  31  Pac.  561;  Ayers  v.  Rochester  Ry.  Co.,  156  N.  Y.  104,  108,  .50 
N.  E.  960;  Doherty  v.  Waltham,  4  Gray,  596;  Parker  v.  Cohoes,  10  Hun, 
531. 

Our  conclusion  has  not  been  reached  without  a  careful  perusal 
of  the  opinions  of  the  courts  in  the  cases  cited  by  counsel  for  the  plaintiff 
in  error,  especially  those  in  Colorado  Mortgage  &  Investment  Co.  r. 
Rees  (Colo.  Sup.)  42  Pac.  42;  Tousey  v.  Roberts,  114  N.  Y.  312,  21 
N.  E.  399,  11  Am.  St.  Rep.  655;  and  Lane  v.  Atlantic  Works,  HI  Mass. 
136.  These  opinions  have  been  read  with  the  deference  and  consider- 
ation to  which  the  judgments  of  learned  and  conscientious  jurists 
are  always  entitled,  but  they  are  not  controlling  authority  in  a  federal 
court;  and  the  xaews  which  have  already  been  expressed  in  this  opinion, 
the  reasons  which  have  been  given  for  them,  and  the  authorities  which 
have  been  cited  in  support  of  them  commend  themselves  more  forcil)ly 
and  persuasively  to  our  minds  than  the  opinions  and  reasoning  in  the 
cases  upon  which  the  counsel  for  the  plaintiff  rely.  Jurisdiction  over 
controversies  between  citizens  of  different  states  was  conferred  upon 
the  national  courts  for  the  avowed  purpose  of  securing  to  the  litigants 
in  such  cases  the  benefit  of  the  independent  opinions  of  the  judges  of 
those  courts.  It  is  the  right  of  these  litigants  to  the  independent  and 
conscientious  judgment  of  the  judges  of  the  national  courts  to  whom 
they  present  their  controversies  upon  the  merits  of  the  issues  they  raise, 
and  a  complete  and  careful  discharge  of  the  duties  imposed  upon  them 
requires  of  the  members  of  the  federal  judiciary  that  they  shall  carefully 
form  and  express  their  independent  judgments  upon  the  questions  pre- 
sented by  such  controversies.  In  the  case  at  bar  this  duty  has  been  dis- 
charged, not  without  some  study,  deliberation,  and  care,  and  the  con- 
clusion of  this  court  is  that  the  record  before  it  conclusively  shows  that 
the  act  of  the  strange  boy  who  opened  the  door  of  the  well  of  the  elevator 
was  the  sole  proximate  cause  of  the  plaintiff's  injury. 

Counsel  earnestly  invoke  the  rule  announced  in  Railway  Co.  v. 
Kellogg,  94  U.  S.  469,  474,  476,  24  L.  Ed.  256,  which  was  followed  by 
this  court  in  Railway  Co.  v.  Callaghan,  6  C.  C.  A.  205,  208,  56  Fed. 
988,  991,  and  Insurance  Co.  v.  Melick,  65  Fed.  178,  180,  12  C.  C.  A. 
544,  546,  27  L.  R.  A.  629,  that  the  question.  What  is  the  proximate 
cause  of  an  injury,  is  ordinarily  a  question  for  the  jury,  and  they  stren- 
uously maintain  that  the  Circuit  Court  erred  because  it  refused  to  sub- 
mit the  question  which  has  been  considered  to  the  jury  upon  the  trial 
below.  There  is,  however,  always  a  preliminary  question  for  the 
judge  at  the  close  of  the  evidence  before  a  case  can  be  submitted  to 
the  jury,  and  that  question  is,  not  whether  or  not  there  is  any  evidence, 


302  FOTTLER  V.  MOSELEY.  [cHAP.   III. 

])ut  whether  or  not  there  is  any  substantial  evidence  upon  which  a 
jury  can  properly  render  a  verdict  in  favor  of  the  party  who  produced 
it.  "'  Brady  v.  Chicago  Ry.,  114  Fed.  100;  Ry.  v.  Be'lliwith,  83  Fed. 
437;  Association  v.  Wilson,  100  Fed.  368;  Commissioners  v.  Clark, 
94  U.  S.  278;  North  Pennsylvania  R.  R.  v.  Bank,  123  U.  S.  727;  Ry. 
V.  Converse,  139  U.  S.  469;  Laclede  Mfg.  Co.  v.  Ins.  Co.,  60  Fed.  351; 
Gowen  v.  Harley,  56  Fed.  973;  Motey  v.  Granite  Co.,  74  Fed.  155. 


FOTTLER  V.  MOSELEY. 
SuPKEME  Judicial  Court  of  IMassachusetts,  1904. 

[Reported  179  Mass.  295.] 

Tort  for  deceit,  alleging  that,  rehing  upon  the  false  and  fraudulent 
representations  of  the  defendant,  a  broker,  that  certain  sales  of  the  stock 
of  the  Franklin  Park  Land  Improvement  Company,  in  the  Boston  Stock 
Exchange  from  January  1  to  March  27,  1893,  were  genuine  transactions, 
the  plaintiff  revoked  an  order  for  the  sale  of  certain  shares  of  that  stock 
held  for  him  by  the  defendant,  whereby  the  plaintiff  suffered  loss.  Writ 
dated  February  17,  1896. 

At  the  first  trial  of  the  case  in  the  Superior  Court  a  verdict  was  ordered 
for  the  defendant,  and  the  exceptions  of  the  plaintiff  were  sustained  by 
this  court  in  a  decision  reported  in  179  Mass.  295.  At  the  new  trial  in  the 
Superior  Court  before  Sherman,  J.,  it  appeared  that  one  Moody  Merrill, 
a  director  and  officer  of  the  Franklin  Park  Land  Improvement  Com- 
pany absconded  late  in  May  or  early  in  June  of  1893,  and  that  imme- 
diately upon  his  departure  it  was  discovered  that  he  had  embezzled  nearly 
$100,000  of  the  funds  of  that  company,  the  result  of  which  was  that  the 
market  price  of  the  stock  immediately  fell  and  the  stock  could  not  be 
sold;  that  the  plaintiff  from  the  time  of  the  discovery  of  the  defendant's 
alleged  fraud  did  his  l)est  to  sell  his  stock,  Init  was  unable  to  do  so  at 
more  than  S3  a  share,  at  which  price  he  sold  it  after  bringing  this  action. 

The  plaintiff  among  other  requests  asked  the  judge  to  rule,  "  That  it 
is  of  no  consequence  so  far  as  the  defendant's  liability  is  concerned  that 
an  outside  intervening  cause  has  been  the  sole  or  contributing  cause  of 
the  dechne  in  price  to  which  the  plaintift''s  loss  is  due." 

The  judge  refused  this  and  other  rulings  requested  by  the  plaintiff, 
and  instructed  the  jury,  among  other  things,  as  follows: 

"  If  you  find  the  fair  market  value  of  that  stock  was  always  above  what 
it  was  fictitiously  quoted,  or  equal  to  it,  and  that  it  was  so  on  the  25th  of 
March,  1893,  and  remained  so  and  would  have  remained  so,  except  for 
the  embezzlement  and  absconding  of  IVIoody  Merrill,  then  the  plaintiff 
is  not  entitled  to  recover. 

"  If  you  find  that  Moody  Merrill's  going  away  did  destroy  the  value 


SECT.  IV.]  FOTTLER  V.    MOSELEY.  303 

of  the  stock,  practically  destroy  its  value,  then  the  plaintiff  is  not  en- 
titled to  recover  anything. 

"You  may  take  all  the  e\'idence  on  this  subject,  the  fact  of  what 
Moody  Merrill  did,  and  what  effect  it  had  upon  the  market  value  of  this 
stock,  and  if  that  destroyed  the  market  A^alue,  then,  as  I  have  told  you, 
the  plaintiff  is  not  entitled  to  recover  anything.  If  his  going  away  and 
embezzlement  did  not  affect  the  market  value  of  this  stock,  then  the 
plaintiff  may  recover  the  full  value  of  it." 

The  judge  submitted  to  the  jury  the  following  questions,  which  the 
jury  answered  as  stated  below: 

"1.  Did  the  defendant  make  a  representation  to  the  plaintiff  on 
or  about  March  2.5,  1893,  that  the  quotations  in  the  Boston  Stock  Ex- 
change of  Franklin  Park  Land  and  Improvement  Company  stock  were 
quotations  of  actual  and  true  sales?"    The  jury  answered  "Yes." 

^'2.  Were  such  quotations  at  or  about  the  same  sum  as  the  quota- 
tions of  actual  sales  and  the  sales  at  public  auction?"  The  jury 
answered    "Yes." 

"3.  What  was  the  fair  market  value  of  said  stock  on  or  about 
March  25,  1893?"     The  jury  answered  "$28.50  per  share." 

"4.  What  was  the  fair  market  value  of  said  stock  on  the  last  day  of 
May,  or  immediately  prior  to  June,  1893,  the  day  before  Moody  Mer- 
rill's absconding?"    The  jury  answered  "S27.75  per  share." 

The  jury  returned  a  verdict  for  the  defendant;  and  the  plaintiff  al- 
leged exceptions. 

Knowlton,  C.  J.  The  parties  and  the  court  seem  to  have  assumed 
that  the  evidence  was  such  as  to  warrant  a  verdict  for  the  plaintiff 
under  the  law  stated  at  the  pre\dous  decision  in  this  case,  reported  in 
179  Mass.  295,  if  the  diminution  in  the  selling  price  of  the  stock  came 
from  common  causes.  The  defendant's  contention  is  that  the  embez- 
zlement of  an  officer  of  a  corporation,  being  an  unlawful  act  of  a  third 
person,  should  be  treated  as  a  new  and  independent  cause  of  the  loss, 
not  contemplated  by  the  defendant,  for  which  he  is  not  liable. 

To  create  a  liability,  it  never  is  necessary  that  a  wrongdoer  should 
contemplate  the  particulars  of  the  injury  from  his  wrongful  act,  nor 
the  precise  way  in  which  the  damages  will  be  inflicted.  He  need  not 
even  expect  that  damage  will  result  at  all,  if  he  does  that  which  is  un- 
lawful and  which  involves  a  risk  of  injury.  An  embezzler  is  criminally 
liable,  notwithstanding  that  he  expects  to  return  the  money  appropria- 
ted after  having  used  it.  If  the  defendant  fraudulently  induced  the 
plaintiff  to  refrain  from  selling  his  stock  when  he  was  about  to  sell  it, 
he  did  him  a  wrong,  and  a  natural  consequence  of  the  wrong  for  which 
he  was  liable  was  the  possibility  of  loss  from  diminution  in  the  value  of 
the  stock,  from  any  one  of  numerous  causes.  Most,  if  not  all,  of  the 
causes  which  would  be  likely  to  affect  the  value  of  the  stock,  would  be 
acts  of  third  persons,  or  at  least  conditions  for  which  neither  the  plain- 
tiff nor  the  defendant  would  be  primarily  responsible.     Acts  of  the 


304  BELLING    V.    COLLTHBUS   CONSTRUCTION    CO.       [ciIAP.    III. 

officers,  honest  or  dishonest,  in  the  management  of  the  corporation, 
would  be  among  the  most  common  causes  of  a  change  in  value.  The 
defendant,  if  he  fraudulently  induced  the  plaintiff  to  keep  his  stock, 
took  the  risk  of  all  such  changes.  The  loss  to  the  plaintiff  from  the 
fraud  is  as  direct  and  proximate,  if  he  was  induced  to  hold  his  stock 
until  an  embezzlement  was  discovered,  as  if  the  value  had  been  dimin- 
ished by  a  fire  which  destroyed  a  large  part  of  the  property  of  the 
corporation,  or  by  the  unexpected  bankruptcy  of  a  debtor  who  owed 
the  corporation  a  large  sum.  Neither  the  plaintiff  nor  the  defendant 
would  be  presumed  to  have  contemplated  all  the  particulars  of  the  risk 
of  diminution  in  value  for  which  the  defendant  made  himself  liable  by 
his  fraudulent  representations.  It  would  be  unjust  to  the  plaintiff 
in  such  a  case,  and  impracticable,  to  enter  upon  an  inquiry  as  to  the 
cause  of  the  fall  in  value,  if  the  plaintiff  suffered  from  the  fall  wholly 
by  reason  of  the  defendant's  fraud.  The  risk  of- a  fall,  from  whatever 
cause,  is  presumed  to  have  been  contemplated  by  the  defendant  when 
he  falsely  and  fraudulently  induced  the  plaintiff  to  retain  his  stock. 
V\e  do  not  intimate  that  these  circumstances,  as  w^ell  as  others,  may 
not  properly  be  considered  in  determining  whether  the  plaintiff  was 
acting  under  the  inducement  of  the  fraudulent  representations  in  con- 
tinuing to  hold  the  stock  up  to  the  time  of  the  discovery  of  the  em- 
bezzlement. The  false  representations  may  or  may  not  have  ceased 
to  operate  as  an  inducement  as  to  the  disposition  of  his  stock  before 
that  time.  Of  course  there  can  be  no  recovery,  except  for  the  direct 
results  of  the  fraud.  But  if  the  case  is  so  far  established  that  the 
plaintiff,  immediately  upon  the  discovery  of  the  embezzlement,  was 
entitled  to  recover  on  the  ground  that  he  was  then  holding  the  stock 
in  reliance  upon  the  fraudulent  statements,  and  if  the  great  diminu- 
tion in  value  came  while  he  was  so  holding  it,  the  fact  that  this  diminu- 
tion was  brought  about  by  the  embezzlement  of  an  officer  leaves  the 
plaintiff's  right  no  less  than  if  it  had  come  from  an  ordinary  loss. 

Exceptions  sustained. 


BELLING  V.  COLUMBUS  CONSTRUCTION  CO. 
Supreme  Judicial  Court  of  Massachusetts,  1905. 

[Reported  188  Mass.  430.] 

Barker,  J.  The  plaintiff  procured  Italian  laborers  for  the  service 
of  the  defendant,  a  corporation  engaged  in  the  construction  of  a  public 
work  at  Weston.  He  had  erected  a  temporary  building  on  land  of  another 
person  near  the  locahty  of  the  work.  In  a  part  of  tliis  building  he  kept 
goods  which  by  an  agent  he  sold  to  the  laborers.  The  rest  of  the  building 
was  fitted  with  bunks  for  sleeping  places  and  was  occupied  by  the  laborers 
for  the  use  of  wliich  th§y  paid  him.    When  cold  weather  came  they  de- 


SECT.    IV.]         BELLING   V.    COLUMBUS   CONSTRUCTION   CO.  30.5 

manded  a  fire  to  heat  their  quarters,  and  threatened  to  quit  work  unless 
a  stove  and  fuel  were  furnished. 

One  Keefe  was  the  defendant's  foreman.  He  requested  the  plain- 
tiff's agent  to  pronde  a  stove  to  keep  the  lal)orers  comfortable,  and  the 
agent  promised  that  he  would  write  to  the  plaintiff  and  when  he  heard 
from  him  would  get  a  stove.  Some  days  later  Keefe  told  the  agent  that 
unless  the  stove  was  put  in  he  Keefe  himself  would  order  it,  give  it  to  the 
men  and  let  them  set  it  up.  To  this  the  agent  ol:)jected  and  told  Keefe 
that  he  had  no  right  to  put  in  a  stove  without  the  permission  of  the  plain- 
tiff. Finally  Keefe  procured  a  stove  and  had  it  set  up  by  a  carpenter 
and  thereafter  furnished  the  laborers  with  coal  and  wood  and  the\-  con- 
stantly kept  up  a  fire,  themselves  making  the  fires  and  helping  themselves 
to  the  defendant's  wood  and  coal.  There  was  no  zinc  under  the  stove  and 
the  floor  of  the  building  was  of  wood  with  wide  cracks  between  the 
boards. 

About  one  hundred  feet  away  the  defendant  had  a  storehouse  in 
which  barrels  of  oil  and  gasoline  were  kept  but  not  under  lock  and  key, 
and  to  which  the  laborers  had  access  for  the  purpose  of  filling  torches 
which  they  used  to  gi\e  Hght  by  wliich  to  work  in  a  tunnel.  The  laborers 
who  built  the  fires  frequently  helped  themselves  to  the  gasohne  and  used 
it  in  kindling  fires  in  the  stove.  Keefe  became  aware  of  this  and  called 
the  attention  of  the  agent  to  it  and  told  him  he  must  stop  it,  but  did  noth- 
ing to  secure  the  gasoline,  although  he  notified  the  employee  in  charge 
of  the  gasoline  to  prevent  the  laborers  from  getting  it  to  use  in  the  stove. 
The  plaintiff's  agent  knew  that  the  men  were  lighting  the  fires  with  the 
gasoline  but  it  did  not  appear  that  he  tried  to  prevent  its  use. 

Some  three  weeks  after  the  stove  had  been  set  up,  as  a  laborer 
was  kindling  the  fire,  there  was  an  explosion  of  gasoline;  a  few 
drops  fell  on  the  floor  and  a  fire  ensued  which  consumed  the 
building   and   the  plaintiff's   goods   therein. 

The  case  was  sent  to  an  auditor  who  found  that  the  loss  caused  to  the 
plaintiff  by  the  fire  was  $1,622.64,  but  after  stating  in  his  report  that  and 
other  facts,  found  for  the  defendant.  Thereafter  the  case  was  tried  by 
a  judge  of  the  Superior  Court  without  a  jury.  The  auditor's  report  was 
read.  The  defendant  admitted  that  the  plaintiff  himself  was  in  New  York, 
continuously  from  November  5  to  November  18,  the  fire  ha\ing  occurred 
on  November  22.  The  plaintiff  testified  to  his  whereabouts  from  Novem- 
ber 18  to  November  23,  and  his  e\idence  tended  to  show  that  he  was  not 
at  Weston  after  the  stove  was  set  up  and  before  the  fire.  The  auditor 
having  stated  in  his  report  that  after  the  stove  was  set  up  Keefe  had  an 
interview  with  the  plaintiff  at  which  he  informed  the  plaintiff  that 
repeated  efforts  had  been  made  to  get  a  sto\e  for  the  men  and  had  stated 
to  him  what  action  he  had  taken  in  the  matter  the  plaintiff'  said  "  it  was 
all  right"  and  having  also  reported  that  the  plaintiff'  must  have  known 
that  the. stove  had  been  set  Up  and  must  have  seen  it,  the  plaintiff  fur- 
ther testified  that  he  never  had  any  conversation  with  Keefe  about  the 


306  BELLING   V.    COLUMBUS   CONSTRUCTION   CO.       [cHAP.    III. 

stove.  This  wath  the  auditor's  report  was  all  the  material  e\adence 
at  the  trial.  The  presiding  judge  found  for  the  defendant  and  reported 
the  case  for  the  determination  of  this  court. 

It  is  plain  that  from  the  auditor's  report  as  eAadence,  notwithstanding 
the  defendant's  admission  at  the  trial  that  the  plaintiff  was  in  New 
York  from  the  fifth  to  the  eighteenth  of  November  and  the  plaintiff's 
testimony  that  he  nexer  had  any  con\^ersation  with  Keefe  about  the 
sto\'e,  the  judge  may  have  found  that  the  plaintiff  knew  that  the  stove 
had  been  put  in  and  had  assented  that  Keefe's  actions  in  the  matter 
were  satisfactory  to  him.  This  of  itself  would  seem  to  be  enough  to  re- 
quire us  to  order  judgment  to  be  entered  for  the  defendant  on  the  finding 
in  its  favor. 

But  assuming  that  Keefe's  act  in  putting  in  the  stove  was  an  uncon- 
doned trespass  a  majority  of  the  court  are  of  opinion  that  the  plaintiff 
cannot  recover.  The  putting  in  of  the  stove  for  the  use  of  the  laborers 
did  not  of  itself  cause  the  destruction  by  fire  of  the  plaintiff's  building 
and  goods.  The  possibility  that  the  laborers  in  using  the  stove  might 
neghgently  set  the  building  on  fire  was  too  remote  a  contingency  to 
render  the  defendant  liable  for  it  as  a  natural  consequence  of  the  t'*espass. 
See  Hawks  v.  Locke,  139  IVIass.  205,  208,  and  cases  cited. 

Nor  would  the  facts  that  the  defendant  kept  gasoline  in  barrels  in 
a  storehouse  one  hundred  feet  away  and  not  under  lock  and  key,  and  that 
the  laborers  without  right  helped  themselves  to  the  gasoline  and  by  negli- 
gently using  it  burned  the  building  and  goods,  make  the  defendant  re- 
sponsible. A  wrongful  act  of  the  laborers  against  which  Keefe  had  pro- 
vided by  his  warning  to  the  plaintiff's  agent,  as  well  as  by  his  orders  to  the 
defendant's  employee  in  charge  of  the  storehouse,  and  the  subsequent 
negligence  of  the  laborers  themseh'es  in  using  the  misappropriated  gaso- 
line both  intervened  between  the  keeping  of  the  gasohne  in  an  unlocked 
storehouse  and  the  loss  to  the  plaintiff.  It  was  not  under  all  the  circum- 
stances imperative  upon  the  judge  to  find  that  it  was  negligence  on  the 
part  of  the  defendant  to  keep  gasoline  in  an  unlocked  storehouse.  Nor, 
if  he  found  that  so  to  keep  it  was  wanting  in  due  care,  was  it  imperative 
upon  him  to  find  that  according  to  the  usual  experience  of  mankind  the 
taking  of  the  gasoline  and  its  negligent  use  by  the  laborers  ought  to  have 
been  anticipated  as  probable.  Stone  v.  Boston  &  Albany  Railroad,  171 
Mass.  536;  Glassey  v.  Worcester  Consolidated  Street  Railway,  185 
Mass.  315. 

It  is  not  contended  that  the  laborers  when  kindling  the  fire  were  acting 
"wathin  the  scope  of  their  employment  as  servants  of  the  defendant. 

Judgment  for  the  defendant  on  the  finding} 

1  See  also  CufF  r.  Newark  R.  R.,  35  N.  J.  L.  17.  —  Ed. 


SECT.    IV.]      SCHTt'ARTZ    V.    CALIFORNIA   GAS    &    ELECTRIC    CORP.        307 


SCirVVARTZ  T.   CALIFORNIA  GAS   &  ELECTRIC 
CORPORATION. 

[Supreme  Court  of  California,   1912.] 

[Reported  163  Cal.  .398.] 

Per  Curiam.  This  action  was  brought  to  recover  damages  for 
injuries  to  a  horse  known  as  "Joe  Terry"  belonging  to  plaintiff,  caused, 
it  is  alleged,  by  the  horse  stepping  upon  or  against  an  insulator  dropped 
by  an  employee  of  defendants  upon  a  tract  of  land  in  Yolo  County 
known  as  the  "Van  Zee  Place,"  occupied  by  plaintiff  at  the  time  of 
such  injuries.  The  jury  gave  a  verdict  in  favor  of  plaintiff  for  the 
sum  ol  $6,475,  for  which  amount  judgment  was  entered.  An  ap- 
peal was  taken  by  defendants  from  the  judgment  and  from  ah  order 
den^tdng  their  motion  for  a  new  trial.  Two  decisions  have  been  ren- 
dered on  these  appeals  by  the  district  court  of  appeal  for  the  third 
district,  the  judgrrient  and  order  being  reversed  by  the  first  decision 
on  account  of  error  of  the  trial  court  in  refusing  an  instruction  as  re- 
quested by  defendants  and  giving  the  same  in  a  modified  form,  and  a 
rehearing  having  been  granted  by  said  court,  the  judgment  and  order 
were  affirmed  by  the  second  decision.  ,  An  application  for  a  hearing  in 
this  court  was  then  granted. 

We  are  of  the  opinion  that  the  first  decision  of  the  district  court  of 
appeal  was  correct.  It  is  essential  to  a  proper  understanding  of  the 
question  presented  in  the  matter  of  said  instruction  that  a  statement 
be  made  as  to  some  of  the  facts. 

The  defendants  maintained  and  operated  an  electric  transmission 
line,  consisting  of  poles,  cross-arms,  wares  and  insulators,  along  certain 
highways  in  Yolo  County,  and  the  line  passed  the  "Van  Zee  Place" 
just  outside  the  city  of  \Yoodland.  In  the  summer  and  early  autumn 
of  the  year  1906  the  line  was  reconstructed  by  defendants,  new  insula- 
tors put  in  on  many  poles,  and  every  alternate  pole  removed,  making 
the  distance  between  poles  264  feet,  instead  of  132  feet,  which  was  the 
distance  prior  to  the  reconstruction.  At  the  time  of  this  work  the  "  Van 
Zee  Place"  was  occupied  by  one  L.  E.  Hutchings.  A  portion  of  this 
place  consisted  of  an  inclosed  parcel  of  land  fronting  on  the  road,  on 
which  was  a  house,  and  another  adjoining  inclosed  parcel  on  which  was 
a  barn.  The  land  inclosed  with  the  barn  was  knowoi  as  the  barnyard 
or  corral.  The  land  inclosed  with  the  house  was  known  as  the  house- 
yard  and  old  vineyard.  The  \nneyard  portion  fronted  on  the  road  and 
contained  some  ten  or  twelve  rows  of  vines,  varying,  according  to  the 
testimony  of  Mr.  Schwartz,  the  husband  of  plaintiff,  from  two  inches 
to  three  feet  in  height.  The  inclosed  portion  containing  the  \'ineyard 
was  not  used  by  Mr.  Hutchings  for  stock.     Some  time  in  November, 


308      scirv\'AiiTZ  v.  California  gas  &  electric  corp.    [cbl\p.  hi. 

1906,  plaintiff  leased  from  ]Mr.   Hutchings  the  two  parcels  of  land 
we  have  referred  to,  and  went  into  occupancy  thereof.     On  April  10, 

1907,  plaintiff's  husband  turned  the  horse  into  this  old  \'ineyard  por- 
tion while  his  stall  was  being  cleaned.  A  few  minutes  later,  the  stall 
having  been  cleaned,  he  went  after  the  horse  to  take  him  back.  He 
testified:  "As  I  started  to  halter  him  he  l)it  at  me  and  I  stepped  back. 
I  stepped  back  and  corrected  him  for  attempting  to  bite  me.  I  held 
the  halter  for  him  to  put  his  nose  in,  and  the  horse,  in  stepping  back  to 
put  his  nose  in  the  halter,  moved  back  and  came  in  contact  with  some- 
thing, which  I  found  afterwards  was  a  broken  insulator."  The  insu- 
lator was  similar  to  those  in  use  on  defendants'  line  at  the  time  the 
reconstruction  work  was  done,  some  of  which  were  then  removed. 
They  had  an  eleven-inch  porcelain  top,  shaped  something  like  a  saucer, 
and  a  glass  center  about  nine  inches  long,  and  weighed  about  twelve 
pounds.  Mr.  Schwartz  said  that  the  saucer  part  of  this  insulator  was 
whole  and  laid  next  to  the  ground.  The  result  of  the  contact  of  the 
horse  with  this  insulator,  the  glass  part  of  which  was  broken,  was,  ac- 
cording to  Mr.  Schwartz,  that  the  horse  was  severely  cut  on  the  right 
hind  foot  between  the  hoof  and  the  fetlock.  The  horse  was  a  stallion 
and  A'aluable  only  for  breeding  purposes,  and  there  was  testimony 
sufficient  to  sustain  a  conclusion  that  he  was  thereby  rendered  useless 
for  such  purposes.  There  was  testimony  given  by  one  William  Weight, 
who  was  over  eighty  years  of  age,  and  who  was  employed  by  Hutchings 
on  the  "Van  Zee  Place"  at  the  time  of  such  reconstruction  work  in 
the  summer  and  autumn  of  1906,  to  the  effect  that  he  saw  one  of  the 
men  engaged  in  such  work  drop  an  insulator  from  the  cross-arm  of  one  of 
the  poles  into  this  vineyard,  and  that  the  insulator  fell  into  the  \^ne- 
yard  at  the  northwest  corner,  some  seven  or  eight  feet  from  the  fence. 
This  testimony  was  given  some  two  years  after  the  accident  to  the  horse. 
He  said  that  he  saw  the  insulator  in  the  vineyard  many  times  there- 
after, "passed  it  nearly  every  day,"  but  did  not  pick  it  up  becau.se  it 
did  no  harm  there,  and  that  they  were  not  using  the  vineyard  for  stock. 
It  was  clearly  established  that  the  horse  was  injured  in  the  northwest 
corner  of  the  \aneyard,  and  Mr.  Schwartz  said  that  the  insulator 
was  at  a  point  two  or  three  feet  from  the  north  fence  and  between  six 
and  ten  feet  from  the  west  fence,  which  was  the  road  fence.  Evidence 
introduced  by  the  defendants  was  very  clear  to  the  effect  that  at 
the  time  this  work  was  done  by  the  defendants,  the  nearest  pole  to 
the  northwest  corner  of  the  \Tineyard  on  one  side  was  sixty  feet  and  on 
the  other  side  seventy-two  feet.  Mr.  Hutchings,  then  and  for  many 
years  prior  occupant  of  the  place,  testified  in  effect  that  there  had 
been  no  change  in  the  poles  except  that  every  other  pole  was  taken 
out,  and  his  testimony  and  that  of  Mr.  Ashley,  taken  together,  is 
clearly  to  the  efTect  already  stated.  This  evidence  was  in  no  way 
contradicted  except  in  so  far  as  it  was  inferentially  contradicted  by 
the  evidence  of  Mr.  W^eight,  to  which  we  have  already  referred. 


SECT.    IV.]     SCHWARTZ   V.    CALIFORNIA    GAS    &    ELECTRIC    CORP.        309 

In  the  light  of  these  facts,  which  we  have  stated  as  strongl^>'  in  favor 
of  plaintiff  as  the  record  warrants,  the  district  court  of  appeal  in  its 
first  opinion  declared  in  part  as  follows :  — 

"Many  points  are  made  for  a  reversal  of  the  judgment.  Most  of 
them  are  without  merit,  some  of  them  probably  involve  error  without 
prejudice,  but  one  necessitates,  as  we  view  it,  a  new  trial  of  the  action. 

"Defendants  requested  the  court  to  instruct  the  jury  as  follows: 
'You  cannot  find  for  the  plaintiff  in  this  case  unless  you  believe  from 
the  evidence: 

"  1 .  That  plaintiff's  horse  was  injured  by  an  insulator,  the  property 
of  defendants.  2.  That  the  employees  of  defendants  negligently 
placed  said  insulator  on  the  premises  where  it  is  claimed  said  horse  was 
injured  and  at  the  point  where  the  emdence  shows  said  horse  was  in 
fact  injured.'  As  given  by  the  court  the  second  subdivision  was  modi- 
fied to  read  as  follows:  'That  the  employees  of  defendants  negligently 
placed  or  permitted  said  insulator  to  remain  on  the  premises  where  it 
is  claimed  said  horse  was  injured,  and  at  a  point  where  the  evidence 
shows  some  injury  might  result.' 

"In  the  language  of  appellants:  'As  proposed,  this  instruqtion  lim- 
ited responsibility  to  the  placing  of  the  insulator  at  the  point  where  the 
horse  was  injured.  The  modification  made  the  defendants  liable  if 
they  placed  it  anyw'here  on  the  premises.' 

"The  proposed  instruction  was  based  upon  the  theory  that  an  in- 
tervening, independent  agency  may  have  been  the  proximate  cause  of 
the  injury.  It  seems  plain,  that  if  appellants  carelessly  dropped  the  in- 
sulator upon  the  premises  and  did  not  remove  it  they  would  be  guilty 
of  negligence,  but  after  it  was  dropped  if  somebody  else  picked  it  up 
and  moved  it  to  this  spot  where  the  damage  was  done,  it  was  the  negli- 
gence of  the  latter  that  proximately  caused  the  injury. 

"  It  would  not  be  a  case  of  correlative  and  concurring  causes,  but  of 
proximate  and  remote  agencies  independent  of  each  other.  The  rule  is 
well  settled  that  an  injury  is  not  actionable  which  would  not  have  re- 
sulted from  the  act  of  negligence,  except  for  the  interposition  of  an 
independent  cause.  (Chicago  etc.  Ry.  Co.  v.  Elliott,  55  Fed.  949, 
[20  L.  R.  A.  582,  5  C.  C.  A.  347];  Cole  v.  German  Savings  and  Loan 
Society,  124  Fed.  115,  [63  L.  R.  A.  416,  59  C.  C.  A.  593];  Western 
Union  Tel.  Co.  v.  Schriver,  141  Fed.  550,  [4  L.  R.  A.  (N.  S.)  678,  72 
C.  C.  A.  596].) 

"  In  the  Cole  case,  it  appears  that  the  plaintiff  entered  and  passed 
along  a  hall  in  the  building  of  the  defendant  to  take  the  elevator,  the 
well  or  shaft  of  which  opened  into  the  hall.  A  boy,  who  was  a  stranger 
to  her  and  to  the  defendant,  hurried  past  her  in  the  hall,  pushed  the 
sliding  door  of  the  well  of  the  elevator,  which  was  open  from  one  to  ten 
inches,  back  as  far  as  it  would  go,  and  stepped  back.  The  plaintiff  sup- 
posed the  boy  was  the  operator  of  the  elevator,  and  stepped  in.  The 
elevator  was  at  an  upper  floor  in  charge  of  its  regular  operator,  and 


310         SCHWARTZ    V.    CALIFORNIA    GAS   &    ELECTRIC    CORP.    [cHAP.  III. 

plaintiff  fell  to  the  bottom  of  the  well  and  was  injured.  The  hall  was 
so  dark  that  it  was  difficult,  but  not  impossible,  to  see  the  elevator 
when  it  was  at  the  lower  floor,  and  when  it  was  not  there  nothing  but 
darkness  was  visible  in  the  well.  It  was  held  that  the  negligent  acts 
and  omissions  of  the  defendant  were  not,  and  those  of  the  strange  boy 
were,  the  proximate  cause  of  tlie  injury.  '  The  latter  constituted 
an  independent  intervening  cause  which  interrupted  the  natural  se- 
quence of  events  between  the  negligence  of  tlie  defendant  and  the 
injury  of  the  plaintiff,  insulated  the  defendant's  negligence  from  the 
plaintiff's  hurt,  broke  the  causal  connection  between  them  and  produced 
the  injury.'  The  negligence  of  the  defendant  in  that  case,  as  stated  by 
the  court,  consisted  of  permitting  such  a  degree  of  darkness  in  the  hall, 
of  allowing  boys  to  ride  upon  and  sometimes  operate  the  elevator,  of 
neglecting  to  provide  a  lock  for  the  door  which  would  prevent  any 
one  from  unlocking  it  from  the  outside  and  of  permitting  the  door  to 
stand  open  from  one  to  ten  inches.  Defendant  there  was  indeed  guilty 
of  gross  negligence,  but  it  was  held  not  to  be  the  proximate  cause  of  the 
injury. 

"  In  Berry  v.  San  Francisco  &  N.  P.  R.  R.  Co.,  50  Cal.  435,  it  was  held 
that  the  injury  done  to  plaintiff's  wheat  by  the  hogs  of  third  persons 
was  not  the  direct  damage  resulting  from  the  trespass  of  defendant 
in  destroying  a  portion  of  plaintift"'s  fences  by  reason  of  which  the  hogs 
obtained  access  to  said  premises. 

"In  Loftus  V.  De  Hail,  133  Cal.  214,  [65  Pac.  379],  the  action  was 
brought  to  recover  damages  for  injuries  sustained  by  the  plaintiff,  an 
infant  seven  years  of  age,  from  falling  into  a  cellar  of  defendants, 
situated  on  a  vacant  lot  in  the  city  of  Los  Angeles.  The  defendants 
were  the  owners  of  the  lot,  w^hich  was  located  in  a  populous  and  thickly 
settled  quarter  of  the  city.  Upon  the  lot  had  stood  a  house,  which  had 
Vjeen  removed,  leaving  upon  the  premises  a  cellar  partially  filled  with 
debris.  The  premises  were  left  in  an  open  and  unguarded  condition. 
The  plaintiff  lived  in  the  neighborhood  of  the  lot,  and,  upon  the  day  of 
the  accident,  w^as  engaged  with  other  children  in  playing  around  the 
cellar,  and  while  so  engaged  was  by  her  younger  brother  pushed  into  the 
cellar,  sustaining  the  injuries  complained  of.  It  was  held  by  the  court 
that  his  act  was  the  proximate  cause  of  the  injury,  and  that  '  it  was 
not  in  her  play  and  as  part  of  her  play  and  in  ignorance  of  the  danger 
of  her  play,  but  she  was  injured  by  the  violence  of  her  little  brother  in 
a  matter  apart.'  The  foregoing  are  a  few  of  many  cases  illustrating 
the  operation  of  an  independent  proximate  cause  producing  injury,  and 
they  seem  to  be  in  harmony  with  the  principle  embodied  in  said  pro- 
posed instruction  here. 

"  Of  course,  if  there  were  no  e\'idence  in  the  record  tending  to  sup- 
port said  theory  the  court's  action  would  be  adjudged  entirely  without 
prejudice.  While  there  was  no  direct  evidence  that  any  third  party 
moved  said  insulator,  circumstances  do  appear  from  which  a  rational 


II 


SECT.    IV.]     SCHWARTZ   V.    CALIFORNIA    GAS   &    ELECTRIC    CORP.        311 

inference  might  be  drawn  to  that  effect,  and  therefore  it  was  a 
proper  question  to  submit  to  the  jury.  The  only  witness  who  testi- 
fied that  he  saw  the  insulator  fall  from  the  pole  was  one  William 
Weight,  an  old  man  past  eighty,  who  admitted  his  eyesight  was  bad. 
He  testified  that  he  was  employed  on  the  '  Van  Zee '  Place  during  the 
summer  and  forepart  of  the  fall  of  1906,  when  it  was  occupied  l)y  Lee 
Hutchings.  '  During  that  time  men  worked  on  the  electric  pole  line. 
They  were  changing  insulators  and  putting  up  wires  and  one  of  the 
men  dropped  an  insulator  into  the  northwest  corner  of  the  vineyard. 
The  man  was  on  a  cross-bar  when  he  dropped  the  insulator,  which 
was  as  large  as  a  cuspidor.'  Other  evidence  shows  clearly  that  the  near- 
est pole  to  the  northwest  corner  of  the  vineyard  was  si.xty  feet,  and  in 
another  direction  there  had  been  one  seventy-two  feet  from  the  corner. 
The  insulator  weighed  twelve  pounds  and  the  poles  were  thirty  feet 
high.  It  was,  therefore,  quite  a  probable  inference  that  within  the  eight 
or  nine  months  intervening  before  the  accident  some  other  party  moved 
the  insulator,  as  it  could  not  have  '  dropped  '  to  a  point  on  tlie  ground 
sixty  or  seventy  feet  from  the  foot  of  the  pole. 

"To  this  complaint  by  appellants  of  the  action  of  the  court  in  re- 
fusing said  instruction  the  only  answer  made  by  respondent  is  as  fol- 
lows: 'The  modification  of  instruction  18  was  proper  because  the  in- 
struction as  proposed  was  erroneous  in  that  it  was  an  instruction  as  to 
the  facts.  The  language  of  subdivision  2  of  the  instruction  was  a  straight 
statement  that  the  evadence  shows  that  the  horse  was  not  injured.' 
In  this  respondent  is  clearly  in  error.  The  instruction  is  altogether 
hypothetical,  it  does  not  assume  any  fact  as  proven,  but  states  what 
must  be  shown  to  justify  a  verdict  for  plaintiff.  The  point  seems  to  be 
a  i-ital  one  in  the  case  and  it  is  believed  that  the  defendants  were  en- 
titled to  the  instruction  and  for  this  reason  the  judgment  and  order  are 
reversed." 

Learned  counsel  for  plaintiff  ably  and  earnestly  assailed  this  opinion 
and  the  consequent  judgment  of  reversal  in  their  petition  for  a  rehearing 
in  the  district  court  of  appeal,  and  in  their  brief  filed  subsequently  in 
this  court,  but  we  believe  that  it  correctly  disposes  of  this  appeal. 
Some  of  the  points  so  made  by  counsel  are  sufficiently  disposed  of 
by  such  opinion.  We  are  of  the  opinion  that  the  requested  instruction 
was  not  an  instruction  as  to  the  facts,  and  that  it  correctly  stated  the 
law  applical)le  in  view  of  the  testimony.  We  are  satisfied  that  none  of 
the  instructions  given  the  jury  substantially  covered  the  subject  matter 
of  the  requested  instruction,  in  so  far  as  the  same  referred  to  the  ques- 
tion of  an  intervening,  independent  agency.  We  do  not  consider  Merrill 
V.  Los  Angeles  etc.  Co.,  158  Cal.  499,  [139  Am.  St.  Rep.  134,  111  Pac. 
534],  in  any  way  opposed  to  our  conclusion  herein. 

The  judgment  and  order  den^^drig  a  new  trial  are  reversed. 

Mr.  Justice  Sloss,  deeming  himself  disqualified,  does  not  participate 
herein.  \  Rehearing  denied. 


312    WATSON  V.  KENTUCKY  &  INDIANA  BRIDGE  &  R.  R.  CO.   [CHAP.  III. 


WATSON    I'.    KENTUCKY    &    INDIANA    BRIDGE 
&    RAILROAD    CO. 

Court  of  Appeals  of  Kentucky,   1910. 
[Reported  1.37  Ky.  619.]    . 

Seattle,  J.     This  action  was  instituted  by  the  appellant,  John  Wat- 
son, in  the  court  below,  against  the  appellees,  Kentucky  &  Indiana 
Bridge    &    Railroad    Company,     hereinafter    called    the    Bridge    & 
Railroad   Company,  the  Southern  Railway  Company,  the  Southern 
Railway  Company  in  Kentucky,  and  the  Union  Tank  Line  Com- 
pany, to  recover  $20,000  damages  for  injuries  sustained  to  his  person 
on  the  night  of  June  14,  1907,  from  an  explosion  of  gas  caused,  as 
alleged,  by  the  negligence  of  the  appellees.     It  was,  in  substance,  al- 
leged in  the  petition  as  amended  that  while  a  tank  car,  owned  by  the 
appellee  Union  Tank  Line  Company,  and  filled  with  a  highly  explosive 
.substance  known  as  gasoline,  was  being  transported  through  a  pop- 
ulous section  of  the  city  of  Louisville  over  the  roadbed  of  the  appellee 
Bridge  &  Railroad  Company,  it  was  derailed  and  its  valve  broken, 
thereby  causing  all  the  gasoline  to  escape  and  flow  in  'large  quantities 
on  the  street  and  into  the  gutters;  that  from  the  gasoline  thus  flowing 
and  standing  in  pools  upon  the  street  and  gutters  there  arose  and  spread 
over  the  neighborhood  of  the  place  of  derailment  and  into  the  houses 
of  the  residents  thereof,  great  quantities  of  highly  explosive  and  com- 
bustible gas  which,  three  hours  after  the  derailment  of  the  tank  car, 
exploded  with  force  from  contact  with  a  lighted  match  thrown  on  the 
street  by  one  Chas.  Duerr,  who  claimed  to  have  used  it  in  igniting  a 
cigar;  that  the  explosion  threw  appellant  from  his  bed  and  almost  de- 
molished his  house,  from  the  ruins  of  which  he  was  taken  unconscious 
and  bleeding  with  a  fractured  jaw  and  one  cheek  nearly  torn  from  his 
face.  It  was  further  charged  in  the  petition  that  the  explosion  and  appel- 
lant's consequent  injuries  resulted  from  the  negligence  of  all  the  appel- 
lees; the  negligence  of  the  Union  Tank  Line  Company  lying,  as  alleged, 
in  its  failure  to  provide  the  tank  car  with  proper  trucks  and  main 
valve;  that  of  the  Bridge  &  Railroad  Company  in  failing  to  maintain  in 
a  safe  condition  the  roadbed  and  track  at  the  point  of  derailment;  in 
permitting  the  tank  car  to  remain  at  the  place  of  derailment  in  its 
wrecked  condition  an  unreasonable  time,   and  in  allowing  ignorant 
and  careless  meddling  on  the  part  of  their  servants  with  the  main  valve 
of  the  tank  after  it  was  broken,  whereby  the  flow  of  the  gasoline  from 
the  tank  was  increased  instead  of  diminished.^  .  .  . 

The  lighting  of  the  match  by  Duerr  havdng  resulted  in  the  explo- 
sion, the  question  is,  was  that  act  merely  a  contributing  cause,  or 

^  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT.    IV.]    WATSON  V.  KENTUCKY  &  INDIANA  BRIDGE  &  R.  R.  CO.    31 


o 


the  efficient  and,  therefore,  proximate  cause  of  appellant's  injuries? 
The  question  of  proximate  cause  is  a  question  for  the  jury.  In  holding 
that  Duerr  in  lighting  or  throwing  the  match  acted  maliciously  or 
with  intent  to  cause  the  explosion,  the  trial  court  invaded  the  pro\dnce 
of  the  jury.  There  was,  it  is  true,  evidence  tending  to  prove  that  the 
act  was  wanton  or  malicious,  but  also  evadence  conducing  to  prove 
that  it  was  inadvertently  or  negligently  done  by  Duerr.  It  was  there- 
fore for  the  jury  and  not  the  court  to  determine  from  all  the  e^^dence 
whether  the  lighting  of  the  match  was  done  by  Duerr  inadvertently 
or  negligently,  or  whether  it  was  a  wanton  and  malicious  act.  As  said 
in  Milwaukee  Railroad  Co.  v.  Kellogg,  94  U.  S.  469,  24  L.  ed.  2.56: 
"The  true  rule  is  that  what  is  the  proximate  cause  of  the  injury  is 
ordinarily  a  question  for  the  jury.  It  is  not  a  question  of  science 
or  legal  knowledge.  It  is  to  be  determined  as  a  fact  in  view  of 
the  circumstances  of  fact  attending  it."  Snydor  v.  Arnold,  122 
Ky.  557,  92  S.  W.  289,  28  Ky.  Law  Rep.  1252.  In  Thompson  on 
Negligence,  §  161,  it  is  said:  "On  principle,  the  rule  must  be 
here,  as  in  other  cases,  that,  before  the  judge  can  take  the  question 
away  from  the  jury  and  determine  it  himself,  the  facts  must  not  only 
be  undisputed,  but  the  inference  to  be  drawn  from  those  facts  must  be 
such  that  fair-minded  men  ought  not  to  differ  about  them.  It  must  be 
concluded  that  tliis  is  so,  when  it  is  considered  that  proximate  cause 
is  a  cause  which  would  probably,  according  to  the  experience  of  man- 
kind, lead  to  the  event  which  happened,  and  that  remote  cause  is  a 
cause  which  would  not,  according  to  such  experience,  lead  to  such  an 
event.  Now,  whether  a  given  cause  will  probably  lead  to  a  given  re- 
sult is  plainly  to  be  determined  by  the  average  experience  of  man- 
kind; that  is,  by  a  jury  rather  than  by  a  legal  scholar  on  the  bench." 
No  better  statement  of  the  law  of  proximate  cause  can  be  given  than 
is  found  in  21  Am.  &  Eng.  Ency.  of  Law  (2d  ed.)  490,  quoted  with 
approval  in  Louis\'ille  Home  Telephone  Company  r.  Gasper,  123  Ky. 
128,  93  S.  W.  1057,  29  Ky.  Law  Rep.  578,  9  L.  R.  A.  (N.  S.)  548: 
"  It  is  well  settled  that  the  mere  fact  that  there  have  been  intervening 
causes  between  the  defendant's  negligence  and  the  plaintiff's  injuries 
is  not  sufficient  in  law  to  relieve  the  former  from  liability;  that  is  to 
say,  the  plaintiff's  injuries  may  yet  be  natural  and  proximate  in  law, 
although  between  the  defendant's  negligence  and  the  injuries  other 
causes  or  conditions,  or  agencies,  may  have  operated,  and,  when  this 
is  the  case,  the  defendant  is  liable.  So  the  defendant  is  clearly  respon- 
sible where  the  intervening  causes,  acts,  or  conditions  were  set  in  motion 
by  his  earlier  negligence,  or  naturally  induced  by  such  wrongful  act 
or  omission,  or  even,  it  is  generally  held,  if  the  intervening  acts  or 
conditions  were  of  a  nature  the  happening  of  which  was  reasonabl\'  to 
have  been  anticipated,  though  they  may  have  been  acts  of  the  plaintiff 
himself.  An  act  or  omission  may  yet  be  negligent  and  of  a  nature  to 
charge  a  defendant  with  liability,  although  no  injuries  would  have 


314    WATSON  v.  KENTUCKY  &  INDIANA  BRIDGE  &  R.  R.  CO.    [cHAP.   III. 

been  sustained  but  for  some  intervening  cause,  if  the  occurrence  of  the 
latter  might  have  been  anticipated.  ...  A  proximate  cause  is  that 
cause  which  naturally  led  to  and  which  might  ha\'e  been  expected  to 
produce  the  result.  .  .  .  The  connection  of  cause  and  effect  must  be 
established.  It  is  also  a  principle  well  settled  that  when  an  injury  is 
caused  by  two  causes  conciuTing  to  produce  the  result,  for  one  of 
which  the  defendant  is  responsible,  and  not  for  the  other,  the  defendant 
cannot  escape  responsibility.  One  is  liable  for  an  injury  caused  by  the 
concurring  negligence  of  himself  and  another  to  the  same  extent  as 
for  one  caused  entirely  by  his  own  negligence."  Black's  Law  &  Prac- 
tice, §21;  Thompson  on  Negligence,  §§47-52;  Whitaker's  Smith  on 
Negligence,  27;  29  Cyc.  488-502. 

If  the  presence  on  Madison  Street  in  the  city  of  Louis\alle  of  the 
great  volume  of  loose  gas  that  arose  from  the  escaping  gasoHne  was 
caused  by  the  negligence  of  the  appellee  Bridge  &  Railroad  Company,  it 
seems  to  us  that  the  probable  consequences  of  its  coming  in  contact 
with  fire  and  causing  an  explosion  was  too  plain  a  proposition  to  admit 
of  doubt.     Indeed,  it  was  most  probable  that  some  one  would  strike 
a  match  to  light  a  cigar  or  for  other  purposes  in  the  midst  of  the  gas. 
In  our  opinion,  therefore,  the  act  of  one  lighting  and  throwing  a  match 
under  such  circumstances  cannot  be  said  to  be  the  efficient  cause  of 
the  explosion.     It  did  not  of  itself  produce  the  explosion,  nor  could  it 
have  done  so  without  the  assistance  and  contribution  resulting  from  the 
primary  negligence,  if  there  was  such  negligence,  on  the  part  of  the 
appellee  Bridge  &  Railroad  Company  in  furnishing  the  presence  of  the 
gas  in-  the  street.     This  conclusion,  however,  rests  upon  the  theory 
that  Duerr  inadvertently  or  negligently  lighted  and  threw  the  match  in 
the  gas.     This  \aew  of  the  case  is  sustained  by  the  following  leading 
cases,  all  decided  by  this  court:  Snydor  v.  Arnold,  122  Ky.  557,  92 
S.  W.  289,  28  Ky.  Law  Rep.  1252;  Louisville  Gas  Co.  v.  Gutenkuntz, 
82  Ky.  432;  ^Yhitman-McNamara  Tobacco  Co.  r.  Warren,  66  S.  W. 
609,  23  Ky.  Law  Rep.  2120;  Louisville  Home  Telephone  Co.  r.  Gasper, 
123  Ky.  128,  93  S.  W.  1057,  29  Ky.  Law  Rep.  578,  9  L.  R.  A.  (N.  S.) 
548.      The  cases  supra  are,  indeed,  in  point  of  fact  and  principle  so 
analogous  to  the  case  under  consideration  as  to  completely  control 
its  determination,  and  to  render  further  discussion  of  it  unnecessary. 
If,  however,  the  act  of  Duerr  in  lighting  the  match  and  throwing 
it  into  the  vapor  or  gas  arising  from  the  gasoline  was  malicious,  and 
done  for  the  purpose  of  causing  the  explosion,  we  do  not  think  appellees 
would  be  responsible,  for  while  the  appellee  Bridge  &  Railroad  Com- 
pany's negligence  may  have  been  the  efficient  cause  of  the  presence  of 
the  gas  in  the  street,  and  it  should  have  understood  enough  of  the 
consequences  thereof  to  have  foreseen  that  an  explosion  was  likely 
to  result  from  the  inadvertent  or  negligent  lighting  of  a  match  by  some 
person  who  was  ignorant  of  the  presence  of  the  gas  or  of  the  elfect  of 
lighting  or  throwing  a  match  in  it,it  could  not  have  foreseen  or  deemed  it 


SECT.    IV.]  KELSEY   V.    REBUZZINI.  315 

probable  that  one  would  maliciously  or  wantonly  do  such  an  act  for  the 
evil  purpose  of  producing  the  explosion.  Therefore,  if  the  act  of  Duerr 
was  malicious,  we  quite  agree  with  the  trial  court  that  it  was  one  which 
the  appellees  could  not  reasonably  have  anticipated  or  guarded  against, 
and  in  such  case  the  act  of  Duerr,  and  not  the  primary  negligence  of 
the  appellee  Bridge  &  Railroad  Company,  in  any  of  the  particulars 
charged,  was  the  efficient  or  proximate  cause  of  appellant's  injuries. 
The  mere  fact  that  the  concurrent  cause  or  intervening  act  was  un- 
foreseen will  not  relie^'e  the  defendant  guilty  of  the  primary  negligence 
from  liability,  but  if  the  intervening  agency  is  something  so  unexpected 
or  extraordinary  as  that  he  could  not  or  ought  not  to  have  anticipated 
it,  he  will  not  be  liable,  and  certainly  he  is  not  bound  to  anticipate 
the  criminal  acts  of  others  by  which  damage  is  inflicted  and  hence  is 
not  liable  therefor.  29  Cyc.  501-512;  Sofield  v.  Sommers,  9  Ben.  526, 
22  Fed.  Cas.  769,  Cas.  No.  13,  157;  Andrews  v.  Kinsel,  114  Ga.  390,  40 
S.  E.  300,  88  Am.  St.  Rep.  25. 


KELSEY   V.   REBUZZINI. 
Supreme  Court  of  Errors  of  Connecticut,  1913. 

[Reported  89  Atl.  Rrp.   170.] 

The  defendant  and  one  Woodruff  were  owners  of  adjoining  tracts 
of  land  in  Guilford.  The  l)oundary  line  between  these  tracts  was  the 
center  line  of  a  stream  known  as  West  River,  which  flows  in  a  southerly 
direction.  The  defendant  owned  the  east  tract  and  Woodruff  the  west. 
The  southern  boundary  line  of  the  two  tracts  was  a  continuous  line, 
and  one  Cobb  owned  a  tract  adjacent  to  l)oth  pieces  on  the  south. 
Through  this  Cobb  land  the  stream  flowed.  The  boundary  fence  be- 
tween the  defendant  and  Woodruff  was  built  of  posts  and  three  strands 
of  A^re.  From  the  Cobb  lot  northerly  for  a  little  more  than  one-half  the 
length  of  the  other  two  lots  it  was  situated  on  the  westerly  or  Woodioiff 
side  of  the  stream.  This  portion  was  by  agreement  of  the  parties  main- 
tained by  Woodruff".  Beginning  at  the  termination  of  this  portion  of 
the  fence  it  crossed  the  stream  and  continuefl  northerly  on  the  easterly 
or  Rebuzzini  side  of  the  stream.  This  section,  pursuant  to  the  agree- 
ment referred  to,  was  maintained  by  the  defendant.  On  July  16, 
1912,  the  Woodruff  lot,  as  the  defendant  well  knew,  was  used  for  the 
pasturage  of  cattle,  and  11  heifers  belonging  to  the  plaintiff  were 
pastured  there  for  hire.     On  the  previous  day  a  cow  belonging  to  the 


316  KELSEY   V.    REBUZZINI.  [cHAP.    III. 

defendant  had  escaped  from  his  land  onto  Woodruff's.  In  the  effort 
to  drive  back  the  cow  two  of  the  defendant's  children  took  down  the 
two  upper  strands  of  wire  in  one  of  the  lengths  of  fence  belonging  to 
the  defendant  to  maintain.  They  were  unable  to  replace  the  wire,  and 
so  reported  to  the  defendant  upon  his  arrival  home  that  evening.  He 
took  no  steps  to  repair  the  fence  until  after  the  occurrences  hereinafter 
related.  On  the  following  day  nine  of  the  plaintiff's  heifers  passed 
through  the  fence  at  the  point  where  the  wires  had  been  torn  down  into 
the  defendant's  lot.  They  then  turned  south  along  the  stream,  and 
finally  into  it  and  dowm  it  until  the.y  reached  ("obb's  lot,  onto  which 
they  passed  by  reason  of  there  being  no  sufficient  fence  across  the  stream 
at  that  point.  A  portion  of  Cobb's  land  lying  back  some  four  or  five 
rods  from  the  stream  was  cultivated  by  him,  and  had  corn  and  pota- 
toes growing  upon  it,  the  potatoes  being  nearest  the  stream.  Some 
time  prior  to  this  day  Cobb  had  caused  a  poisonous  mixture  to  be 
sprayed  upon  the  potato  \anes  for  their  protection.  This  mixture 
had  been  prepared  on  the  west  bank  of  the  stream  by  Cobb's  agents, 
and  in  mixing  it  they  had  spilled  some  portion  of  it  upon  the  grass  upon 
the  bank  of  the  stream,  and  also  to  some  extent  upon  the  grass  between 
the  place  where  it  was  mixed  and  the  potatoes,  and  in  spraying  the 
potatoes  some  of  the  mixture  also  was  sprayed  upon  the  grass  along  the 
edge  of  the  potatoes.  When  the  plaintiff's  heifers  reached  Cobb's  land 
they  left  the  stream  and  passed  along  the  west  bank,  cropping  the  grass 
where  the  poison  had  been  spilled  and  sprayed,  and  thus  ate  some 
of  the  poison  from  the  effects  of  which  five  of  them  died.  They  ate 
no  potato  tops.  The  defendant  was  familiar  with  the  use  of  poisonous 
substances  for  spraying  potato  vines,  but  did  not  know  that  Cobb's 
potatoes  had  been  sprayed ;  nor  did  he  know  that  any  poison  had  been 
spilled  or  sprayed  upon  the  grass.  The  division  fence  between  the 
defendant  and  Woodruff  was  not  a  legal  fence  as  Woodruff  knew,  but  he 
did  not  know  the  condition  of  it  as  left  by  the  defendant's  children. 

Prentice,  C.  J.  The  plaintitf  is  not  entitled  to  a  judgment  against 
the  defendant  unless  two  legal  propositions  are  well  founded,  to  wit: 
(1)  That  the  defendant  owed  to  him  for  the  protection  of  his  heifers 
grazing  in  Woodruff's  pasture,  from  the  consequences  to  them  of  es- 
cape therefrom,  the  duty  of  maintaining  a  sufficient  division  fence  at 
the  point  where  they  made  their  escape  onto  the  defendant's  premises; 
and  (2)  that  the  breach  of  this  duty,  arising  from  the  insufficiency  of 
the  fence  at  the  point  of  escape,  was  the  proximate  or  legal  cause  of  the 
loss  which  befell  him  through  the  death  of  his  heifers.  The  first  of 
these  propositions  may  be  assumed  without  decision,  and  yet  the  plain- 
tiff must  fail  in  his  action  by  reason  of  his  failure  to  support  the  second. 

(1)  We  have  accepted  as  the  most  satisfactory  definition  of  a  proxi- 
mate cause  as  related  to  a  subsequent  event,  as  one  "  which,  in  a  natural 
sequence,  unbroken  by  any  new  and  intervening  cause,  produces  that 
event,  and  without  which  that  event  would  not  have  occurred.     It 


SECT.    IV.]  KELSEY   V.    REBUZZINI.  317 

must  be  an  efficient  act  of  causation,  separated  from  its  effect  by  no 
other  act  of  causation."  Smith  v.  Conn.  Ry.  &  Lighting  Co.,  80  Conn. 
268,  270,  67  Atl.  888,  889  (17  L.  R.  A.  (N.  S.)  707) ;  Swayne  v.  Conn.  Co., 
86  Conn.  439,  445,  85  Atl.  634,  737.  The  acceptance  of  this  not  unusual 
definition,  however,  does  not  by  any  means  close  the  door  of  debate  as  to 
what  it  signifies  in  its  practical  application  to  varying  conditions.  There 
remains,  for  instance,  the  question  of  what  it  meant  by  "natural  se- 
quence," and  what  by  "a  new  and  intervening  cause"  breaking  the 
sequence.  Fortunately  the  exigencies  of  this  case  do  not  call  upon  us 
to  enter  into  the  discussion  which  has  been  invoked  by  attempts  to 
arrive  at  a  comprehensive  answer  to  these  questions.  The  facts,  as 
found,  present  a  situation  which  does  not  lie  in  fairly  debatable  ground. 
The  immediate  cause  of  the  death  of  the  plaintiff's  heifers  was  their 
cropping  poisoned  grass  upon  the'  Cobb  lot.  The  insufficient  length  of 
fence  through  which  they  passed  to  the  defendant's  premises  difl  not 
harm  them.  It  did  not  set  in  motion  any  agency  of  destruction  which 
before  it  ceased  to  operate  either  directly,  or  through  the  interposi- 
tion of  some  other  agency  set  in  motion  by  it,  caused  the  death  of  the 
heifers.  It  brought  about  a  new  condition  or  situation  rather.  Smith- 
wick  V.  Hall  &  Upson  Co.,  59  Conn.  261,  269,  21  Atl.  924,  12  L.  R.  A. 
279,  21  Am.  St.  Rep.  104.  This  new  situation  was  not  one  which 
exposed  the  cattle  to  new  danger  except  as  the  intervention  of  some 
person's  wrongful  conduct  might  have  created  or  might  create  such  dan- 
ger. Without  such  intervention  they  would,  as  far  as  appears,  have 
been  as  safe  upon  the  defendant's  land  as  upon  Woodruff's.  Such  in- 
tervention there  was.  Either  Woodruff  or  Cobb  or  the  defendant,  we 
know  not  which,  had  failed  to  maintain  a  sufficient  fence  across  the 
course  of  the  stream  where  it  entered  upon  Cobb's  land.  As  a  con- 
sequence the  heifers  passed  upon  that  land.  Here  they  would  still  have 
been  exposed  to  no  hazard,  had  not  someone  carelessly  spilled  poison 
upon  the  grass  there.  But  it  was  there,  and  they  were  there,  and  they 
ate  of  it  and  died.  We  thus  have  a  condition  of  things  where  the  de- 
fendant's original  WTong  in  neglecting  to  maintain  the  di\nsion  fence 
between  him  and  Woodruff  led  to  harmful  results,  solely  in  conse- 
quence of  the  intervention  of  the  acts  or  omissions  of  other  parties, 
unrelated  to  defendant's  WTong  save  in  the  sequence  of  events  pro- 
ducing new  situations,  in  the  final  one  of  which  the  careless  conduct  of 
a  new  wrongdoer  came  into  deadly  operation. 

(2)  The  rule  laid  down  by  Cooley  is  that  in  such  cases  the  injury 
will  be  imputed  to  the  last  wTongful  act  as  the  proximate  cause,  and 
not  to  that  which  was  more  remote.  "  If  the  original  act  was  wrongful 
and  would  naturally,  according  to  the  ordinary  course  of  events,  prove 
injurious  to  some  other  person  or  persons,  and  does  actually  result  in 
injury  through  the  intervention  of  other  causes  which  are  not  wTongful, 
the  injury  shall  be  referred  to  the  wrongful  cause  passing  by  those  which 
were  innocent.     But  if  the  original  wrong  only  becomes  injurious  in 


31S  KELSEY   V.    REBUZZ^INI.  [CIIAP.    III. 

consequence  of  the  intervention  of  some  distinctly  wrongful  act  or 
omission  by  another,  the  injury  shall  be  imputed  to  the  last  wrong  as 
the  proximate  cause,  and  not  to  that  which  was  more  remote."  Cooley 
on  Torts  (3d  Ed.)  101.  This  rule  is  doubtless  too  broadly  stated,  and 
needs  qualification  in  this:  That  the  negligent  action  of  the  first  party 
in  fault  will  be  regarded  as  the  proximate  cause  whene\'er  the  negligent 
act  or  acts  of  the  subsequent  wrongdoer  or  wrongdoers  are  such  as 
the  original  wrongdoer,  as  a  man  of  ordinary  experience  and  sagacity, 
acquainted  with  all  the  circumstances,  could  reasonably  have  antici- 
pated. "  If  such  a  person  could  have  anticipated  that  the  intervening 
act  of  negligence  might,  in  a  natural  and  ordinary  sequence,  follow  the 
original  act  of  negligence,  the  person  first  in  fault  is  not  released  from 
liability  by  reason  of  the  intervening  negligence  of  another.  If  it  could 
have  not  been  thus  anticipated,  then  the  intervening  negligent  person 
alone  is  responsible."  Shearman  &  Redfield  on  Negligence,  §  34;  Lane 
V.  Atlantic  Wks.,  Ill  Mass.  136. 

(3)  In  the  present  case  the  defendant  doubtless  was  aware  of  the 
condition  of  the  fence  along  the  Cobb  line,  and  might  have  anticipated 
the  passage  of  cattle  from  his  land  through  it.  But  he  had  no  knowledge 
of  poisoned  grazing  in  the  Cobb  lot,  and,  however  experienced  or  saga- 
cious he  might  have  been,  could  not  have  anticipated  that  some  person 
might  aimlessly  have  scattered  poison  about  upon  the  grass  there.  That 
incident  was  one  so  entirely  out  of  the  range  of  human  experience  that 
he  had  no  occasion  to  take  it  into  his  calculations,  and  the  fault  in- 
volved in  it  as  an  efficient  cause  of  the  death  of  the  heifers  was  so  dis- 
tinct, independent,  and  complete,  that  the  plaintiff's  fault  in  not 
maintaining  the  division  fence  between  him  and  Woodruff  in  a  sufficient 
condition  cannot  be  regarded  as  a  cause  of  it.  The  defendant's  fail- 
ure in  the  maintenance  of  the  fence  did  not  stand  to  it  in  the  relation 
of  causa  causans.  "  'Cause'  and  'consequence'  are  correlative  terms. 
One  implies  the  other.  When  an  event  is  followed  in  natural  sequence 
by  a  result  it  is  adapted  to  produce,  or  aid  in  producing,  that  result  is 
a  consequence  of  the  event,  and  the  event  is  the  cause  of  the  result." 
Monroe  v.  Hartford  St.  Ry.  Co.,  76  Conn.  201,  207,  56  Atl.  498,  501. 
The  natural  sequence  of  consequences  flowing  from  the  escape  of  the 
cattle  from  their  pasture  was  effectually  liroken,  and  a  new,  distinct, 
and  independent  cause  productive  of  their  death  introduced  into  the 
situation  when  the  poisoned  grazing  was  encountered. 

There  is  error,  the  judgment  is  reversed,  and  the  cause  remanded, 
for  the  rendition  of  judgment  for  the  defendant. 


SECT.    IV.]    EBERILA.RDT   V.    GLASCO   MUTUAL   TELEPHONE   ASSOC.     319 

EBERHARDT   v.   GLASCO   MUTUAL   TELEPHONE 

ASSOCIATION. 

Supreme  Court  of  Kansas,  1914. 

[Reported  139  Pan.  Rep.  416.] 

West,  J.  (1)  The  plaintiff  sued  for  damages  received  }?y  being 
thrown  from  a  wagon  in  a  runaway.  Her  husband  was  driving  a  span 
of  mules  on  a  public  highway  when  an  automobile  passed  them  on  che 
south,  frightening  the  mules,  and  they,  leaving  the  traveled  roadway, 
veered  to  the  right  and  ran  the  wagon  across  a  pole  or  guy  wire  belong- 
ing to  the  defendant,  throwing  the  plaintiff  out,  and  injuring  her.  The 
pole  was  about  on  the  north  line  of  the  highway,  and  formed  a  part  of 
the  fence,  and  the  guy  wire  extended  from  the  pole  about  4  feet  south- 
east, where  it  was  attached  to  a  rod  anchored  in  the  ground.  The 
road  from  fence  to  fence  is  44  feet  wide,  the  traveled  portion  being 
about  30  feet  wide,  and  on  each  side  between  the  driveway  and  the 
fence  is  an  embankment  not  used  for  travel.  This  embankment  where 
the  injury  occurred  is  only  al)out  6  inches  higlier  than  the  roadway. 
It  was  not  graded  or  smoothed,  but  was  covered  with  grass  and  weeds. 
The  husband  testified  that  the  team  ran  about  100  feet,  and  swung 
to  the  right  and  hit  the  guy  wire  \vith  the  front  wheel  of  the  wagon; 
that  it  was  4  feet  and  4  inches  to  the  pole  from  where  the  guy  wire 
entered  the  ground,  that  he  could  have  held  the  team  had  it  not  been 
for  this  obstruction,  and  would  have  had  them  under  control  in  a  little 
while.  There  was  testimony  that  the  team  had  tried  to  run  awaySbe- 
fore;  also  that  they  ran  about  20  rods  before  the  accident  occurred. 
It  is  claimed  that  the  defendant  was  negligent  in  placing  and  main- 
taining the  pole  and  wire  at  the  place  and  in  the  manner  indicated,  and 
that  they  constituted  a  nuisance,  and  were  the  proximate  cause  of  the 
injury.  The  court  sustained  a  demurrer  to  the  plaintiff's  evidence 
and,  having  refused  a  new  trial,  the  plaintiff  appeals. 

The  defendant  denies  that  the  pole  and  wire  were  negligently  placed, 
and  that  they  were  the  proximate  cause  of  the  injury.  We  find  no 
authority  for  holding  that  the  location  of  the  pole  practically  on  the 
boundary  line  of  the  highway  could  be  deemed  negligence  on  the  part 
of  the  defendant.  Whether  the  guy  wire  was  so  placed  and  anchored 
as  to  constitute  negligence  is  a  question  on  both  sides  of  which  much 
could  be  said,  but  one  we  do  not  deem  necessary  to  decide.  Unless 
the  guy  wire  was  the  proximate  cause  of  the  injury,  there  can  be  no 
liability,  whether  its  location  were  negligent  or  otherwise. 

(2)  The  question  of  proximate  cause  is  one  frequently  so  near  the 
border  line  as  to  cause  much  perplexity;  but,  generally  speaking,  it 
may  be  said  in  this  State  that  the  proximate  is  the  producing  cause,  not 
the  one  supplying  the  condition,  but  the  one  producing  the  injury. 
The  one  supplying  the  condition  may  be  so  intrinsically  careless  as  to 
amount  practically  to  a  continuing  invitation,  so  to  speak,  for  a  direct 


320         EBEEHARDT  V.  GLASCO  MUTUAL  TELEPHONE  ASSOC.     [cHAP.  III. 

cause  to  join  in  producing  a  disastrous  result.  But  to  be  such  it  must 
present  a  condition  of  danger  so  manifest  that  the  one  responsible 
must  be  held  to  have  been  negligent  in  furnishing  the  means  for  a  prob- 
able injury.  But  a  condition  which  could  not  reasonably  be  expected 
to  endanger,  and  which,  but  for  some  independent  cause  without  which 
the  injury  would  not  have  occurred,  would  not  have  endangered,  does 
not  ordinarily  amount  to  a  proximate  cause.  It  is  entirely  plain 
that,  had  the  mules  not  become  frightened,  and  had  they  not  also  got 
beyond  the  driver's  control,  the  wire  would  have  had  no  possible  con- 
nection with  the  most  regrettable  injury.  The  party  placing  the  wire 
4  feet  and  4  inches  from  the  pole  in  the  grassy  embankment  north  of 
the  traveled  portion  of  the  road  cannot  be  held  to  ha^•e  foreseen  that 
a  team  might  become  frightened  20  rods  east  thereof  and  run  upon 
the  embankment.  Had  the  automobile  not  passed,  had  it  not  scared  the 
team,  had  they  not  pulled  out  of  the  road  in  spite  of  the  driver's  efforts 
to  keep  them  in  it,  no  harm  would  have  come  from  the  wire,  and  to  hold 
the  compan,y  placing  it  there  liable  would  be  to  charge  it  with  the  duty 
to  foresee  all  these  most  uncommon  and  unlooked  for  conditions. 

While  the  plaintiff  cites  decisions  from  other  States  which  support 
or  tend  to  support  her  position,  attention  is  also  called  to  Street  Ry. 
Co.  V.  Stone,  54  Kan.  83,  37  Pac.  1012,  and  Hosier  v.  Butler  Co., 
82  Kan.  708,  109  Pac.  162.  In  the  Stone  Case  the  horse  took  fright 
at  an  object  for  which  the  city  was  not  responsible,  and  got  beyond  the 
control  of  the  driver,  and  came  in  contact  with  an  obstruction  in  the 
street  which  the  city  had  been  negligent  in  not  removing  or  repairing, 
and  the  city  was  held  liable.  There  the  obstruction  was  in  the  opened 
and  traveled  portion  of  the  street,  and  a  duty  rested  upon  the  city 
to  keep  it  in  a  reasonably  safe  condition  for  travel.  It  is  clear  that  the 
defect  or  obstruction  was  such  as  likely  to  cause  damage.  Hence 
the  facts  are  by  no  means  like  those  involved  here.  In  the  Mosier 
Case  it  was  said  (82  Kan.  709,  109  Pac.  162)  that  the  frightening  of 
the  horse  and  the  defect  in  the  guard  rail  were  related  in  their  opera- 
tion, and  the  injury  would  not  have  resulted  if  the  guard  rail  had  not 
been  defective.  From  the  facts  there  shown,  the  absence  of  a  sufficient 
guard  rail  provided  a  constant  condition  if  not  a  source  of  danger  liable 
and  likely  to  happen  at  any  time. 

The  appellee  cites  many  decisions;  but  we  will  notice  only  those 
which  seem  most  directly  in  point.  In  Railway  Co.  i\  Bailey,  66 
Kan.  115,  71  Pac.  246,  a  horse,  becoming  frightened  at  a  mass  of  escap- 
ing steam,  ran  upon  a  pile  of  sewer  pipe,  overturning  the  buggy,  and 
injuring  the  plaintiff.  In  the  opinion  it  was  said:  "The  proximate 
cause  of  the  injury  —  that  without  which  it  would  not  have  occurred 
—  was  the  frightening  of  the  horse.  This  stood  first  in  the  line  of  causa- 
tion." 66  Kan.  122,  71  Pac.  248.  In  Stephenson  v.  Corder,  71  Kan. 
475,  80  Pac.  938,  69  L.  R.  A.  246,  114  Am.  St.  Rep.  500,  the  defendant's 
team  standing  —  one  of  them  hitched  —  at  a  hitching  rail  became 
frightened  by  a  boy  who,  in  exercising  on  the  hitch  rail,  struck  one  of 


SECT.  lY.]     B.  PINEAPPLE  CO.  V.  ATLANTIC  COAST  LINE  R.  R.  CO.        321 

the  horses  on  the  nose  with  his  foot,  causing  them  to  rear  back  and 
l)reak  loose.  They  colhded  with  a  buggy,  injuring  the  plaintiff,  who 
sued  the  owner  of  the  team,  alleging  that  he  left  them  standing  in- 
securely hitched.  A  judgment  in  her  favor  was  reversed,  on  the  ground 
that  the  act  of  the  boy  frightening  the  team  was  the  proximate  cause, 
and  that  the  defect  in  the  halter,  if  any,  was  only  a  distinct  cause 
unrelated  in  operation  with  the  producing  cause.  The  definition  of 
proximate  cause  there  approved  (71  Kan.  479,  80  Pac.  938,  69  L.  R.  A. 
246,  114  Am.  St.  Rep.  500)  was  such  negligence  as  under  the  circum- 
stances ordinary  prudence  would  have  admonished  the  person  sought 
to  be  charged  that  his  act  or  omission  would  probably  result  in  injury 
to  someone;  the  general  test  l)eing  whether  the  negligence  is  such  that  a 
person  of  ordinary  intelligence  should  have  foreseen  that  an  accident 
was  likely  to  be  produced  thereby.  In  Gas  Co.  v.  Dabney,  79  Kan. 
820,  101  Pac.  488,  it  was  held  that  the  acts  of  the  defendants  did  nothing 
more  than  furnish  the  condition  or  give  rise  to  the  occasion  by  which 
the  injury  was  made  possible,  and  hence  they  were  not  liable.  It 
was  expressly  held  that,  when  the  facts  are  undisputed,  and  the  court 
can  see  that  the  resulting  injury  was  not  probable,  but  remote,  it  is 
its  duty  to  determine  the  question,  and  not  send  it  to  a  jury.  In  Col- 
well  V.  Parker,  81  Kan.  295,  105  Pac.  524,  the  operator  of  a  moving 
picture  show  and  the  manufacturer  and  lessor  of  the  steps  leading  to 
the  entrance  were  sued  for  damages  caused  by  falling  from  the  steps 
for  the  alleged  reason  that  they  were  not  provided  with  railings  or 
guards.  It  was  held  that  the  manufacturer  and  lessor,  even  if  negligent 
in  the  manner  of  construction,  was  not  liable;  such  negligence  being 
remote  and  unrelated  in  its  operation  to  the  direct  proximate  cause, 
and  doing  nothing  more  than  to  furnish  the  condition  or  give  rise  to 
the  occasion  by  which  the  injury  was  made  possible.  The  law  concern- 
ing proximate  cause  was  exhaustively  considered  in  Rodgers  r.  Rail- 
way Co.,  75  Kan.  222,  88  Pac.  885,  10  L.  R.  A.  (N.  S.)  658,  121  Am. 
St.  Rep.  416,  12  Am.  Cas.  441,  and  the  rule  already  indicated  finds 
abundant  support  in  that  decision. 

We  are  compelled  to  hold,  therefore,  that  the  demurrer  to  the  plain- 
tiff's evidence  was  properly  sustained,  and  such  ruling  is 

Affirmed. 


BENEDICT  PINEAPPLE  CO  v.  ATLANTIC  COAST  LINE 

RAILROAD  CO. 

Supreme  Court  of  Florida,  1908. 

[Reported  55  Fla.  514.] 

Whitfield,  J.'  The  main  questions  presented  are  whether  the 
negligent  burning  of  a  canvas  cover  used  to  protect  growing  pineapple 
plants  and  fruit  from  injury  by  cold  and  frost  is  a  proximate  cause 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


.322        B.  PINEAPPLE  CO.  V.  ATLANTIC  COAST  LINE  R.  R.  CO.    [cHAP.  III. 

of  injury  by  cold  and  frost  to  the  growang  plants  and  fruit  before  the 
burned  cover  could  by  reasonable  diligence  be  restored,  so  as  to  give 
the  owner  a  right  to  recover  damages  for  the  injury  to  the  plants  and 
fruit  by  cold  and  frost;  and  whether  the  declaration  sufficiently  states 
that  the  alleged  negligent  act  or  omission  of  the  defendant,  whereby 
fires  escaped  from  a  passing  locomotive,  setting  fire  to  the  cover,  and 
burned  it,  is  a  proximate  cause  of  the  injury  to  the  growing  plants  and 
fruit  from  frost  and  cold. 

The  defendant  railroad  company  had  a  right  to  run  its  engine  and 
train  over  its  tracks,  but  such  right  is  coupled  with  the  duty  to  so 
operate  the  engine  as  not  to  negligently  injure  the  property  of  others 
near  the  track.  The  duty  arises  by  implication  of  law  out  of  the  rela- 
tion of  the  parties  to  each  other  and  the  circumstances  of  the  case. 

To  entitle  a  party  to  recover  damages  for  his  property  injured  or 
destroyed  through  or  by  the  negligent  act  or  omission  of  another, 
the  negligence  complained  of  must  be  shown  to  have  been  a  proximate 
cause  of  the  injury.  Jacksonville,  T.  &  K.  W.  Ry.  Co.  v.  Peninsular 
Land,  Transp.  &  Mfg.  Co.,  27  Fla.  1,  9  South.  661,^17  L.  R.  A.  33. 

Negligence  is  a  proximate  cause  of  an  injury  when  in  ordinary, 
natural  sequence  it  causes,  or  contributes  to  causing,  the  injury, 
without  an  intervening  independent  cause. 

The  negligent  act  or  omission  for  v.^hich  a  party  is  liable  in  damages 
is  one  that  proximately,  i.  e.,  in  ordinary,  natural  sequence,  causes, 
or  contributes  to  causing,  an  injury  to  another,  where  no  independent 
efficient  cause  of  the  injury  intervenes,  and  the  injured  party  is  not 
at  fault. 

A  negligent  act  or  omission  may  be  the  proximate  cause  of  injury, 
Avhether  such  injury  necessarily  or  immediately  follows  the  negligence* 
or  not,  if  the  negligence  is  in  ordinary  natural,  unbroken  sequence  the 
cause  of  the  injury.     Shearman  &  Redfield  on  Neg.  §26;  Milwaukee 
&  St.  Paul  Ry.  Co.  v.  Kellogg,  94  U.  S.  469,  24  L.  ed.  256. 

Liability  for  negligence  extends  to  all  its  natural,  probable,  and  or- 
dinary results.  Any  injury  that  under  the  circumstances  is  the  nat- 
ural, probable,  and  ordinary  result  of  a  negligent  act  or  omission  is 
in  law  held  to  have  been  contemplated  by  the  negligent  party  as  a 
probable  and  proximate  result  of  the  negligence,  when  he  is  informed, 
or  by  ordinary  observation  would  have  been  informed,  of  the  facts 
and  circumstances  attending  the  negligence. 

Results  that  follow  in  ordinary,  natural,  continuous  sequence  from  a 
negligent  act  or  omission,  and  are  not  produced  by  an  independent 
efficient  cause,  are  proximate  results  of  the  negligence,  and  for  such 
results  the  negligent  party  is  lial)le  in  damages,  even  though  the  particu- 
lar results  that  did  follow  were  not  foreseen. 

Where  the  injury  is  caused  by  the  intervention  of  an  independent 
efficient  cause  to  which  the  defendant  did  not  contribute  and  for  which 
he  is  not  respon.sible,  or  is  caused  by  the  act  or  omission  of  the  plaintiff, 


SECT.    IV.]    B.  PINEAPPLE  CO.  V.  ATLANTIC  COAST  LINE  R.  R.  CO.       323 

the  negligence  of  the  defendant  is  not  the  proximate  cause  of  the 
injury.  If  the  plaintiff  contributes  proximately  to  causing  the  injury, 
he  cannot  recover,  unless  otherwise  provided  by  statute. 

The  ordinary  conditions  or  forces  of  nature,  such  as  ordinary  \\nnd, 
cold,  heat,  and  the  like,  that  are  usual  at  the  time  and  place  and 
under  the  circumstances,  and  that  reasonably  should  have  been  ex- 
pected or  foreseen  as  probal^le  to  occur,  are  not,  in  general,  independent, 
efficient  causes,  when  they  affect  or  operate  upon  a  negligent  act  or 
omission  in  causing  a  result.  Those  who  are  negligent  are  held  in 
law  to  know  the  usual  effect  of  ordinary  natural  conditions  and 
forces  upon  a  negligent  act  or  omission,  and  to  ha^•e  contemplated  the 
appearance  and  the  effect  of  such  conditions  and  forces  upon  their 
negligence  or  upon  its  proximate  results,  and  to  be  liable  in  damages 
for  the  natural  and  probable  proximate  results  of  the  negligence. 
13  Am.  &  Eng.  Ency.  Law  (2d  ed.)  457  et  scq.;  1  Thompson  on  Neg. 
136;  Wharton  on  Neg.  §  97. 

If  the  natural  condition  or  force  that  affects  the  negligent  act  or 
omission  is  unusual  or  extraordinary,  the  negligent  party  will  not,  in 
general,  be  held  to  have  known  of  or  contemplated  it,  unless  the  cir- 
cumstances of  the  particular  negligent  act  or  omission  are  such  that 
the  negligent  party  should  have  known  of  or  contemplated  the  prob- 
able appearance  and  effect  of  such  unusual  or  extraordinary  natural 
condition  or  force.  If  the  injury  was  caused  by  some  extraordinary 
or  unusual  natural  force  or  condition  that  could  not  have  been  foreseen, 
or  that  would  have  caused  the  injury  if  there  had  been  no  negligence, 
the  negligence  is  not  the  proximate  cause  of  the  injury. 

Where  the  injury  complained  of  is  the  result  of  the  negligence  of 
the  defendant  and  of  some  other  contributing  cause  not  an  independent 
efficient  cause,  and  the  result  could  not  have  been  produced  in  the  ab- 
sence of  either  contributing  cause,  the  defendant's  negligence  is  a 
pro^nmate  cause  of  the  injury,  if,  under  the  circumstances  attending 
the  defendant's  negligence,  the  injury  was  a  probal)le,  natural,  and 
usual  result  of  the  two  contributing  causes  that  the  defendant  is  held 
to  have  contemplated,  and  the  plaintiff  or  those  for  whom  he  is  respon- 
sible did  not  contribute  proximately  to  the  injury.  Jackson\'ille, 
T.  &  K.  W.  Ry.  Co.  v.  Peninsular  Land,  Transp.  &  Mfg.  Co.,  27  Fla. 
1,  9  South.  661,  17  L.  R.  A.  33;  Moore  v.  Lanier,  52  Pla.  353,  42  South. 
462. 

Where  a  negligent  act  or  omission  is  a  proximate  cause  of  an  injury, 
the  negligent  party  is  liable  in  damages  for  the  usual  and  natural 
consequences  of  the  injury,  whether  the  particular  consequences  that 
followed  the  negligence  were  actually  contemplated  or  not.  For 
such  losses  as  necessarily  follow  the  injury  as  the  result  of  the  negli- 
gence, recovery  may  be  had  under  a  claim  for  general  damages.  Losses 
that  are  the  natural  and  pro.ximate,  but  not  the  necessary,  result  of 
the  injury,  may  be  recovered  as  special  damages  when  sufficiently 


324      B.  PINEAPPLE  CO.  V.  ATLANTIC  COAST  LINE  R.  R.  CO.    [cHAP.  III. 

stated  and  claimed.    Jackson\aIle  Electric  Co.  v.  Batchis,  54  Fla. , 

44  South.  933. 

If,  by  a  wand  that  is  ordinarily  likely  to  occur,  a  fire,  started  by  the 
negligence  of  a  railroad  company,  is  communicated  to  and  destroys 
property  of  another,  the  company  is  liable  in  damages  for  the  property 
so  destroyed,  since  it  is  held  to  Have  contemplated  all  the  natural  and 
ordinary  consequences  of  the  negligence.  Jacksonville,  T.  &  K.  W. 
Ry.  Co.  V.  Peninsular  Land,  Transp.  &  Mfg.  Co.,  27  Fla.  1,  9  South. 
661,  17  L.  R.  A.  33;  Florida  East  Coast  Ry.  Co.  f.  Welch  (Fla.)  44 
South.   250. 

Where  a  railroad  company  allows  water  from  its  tank  to  run  upon 
the  premises  of  another  in  the  winter  season,  and  the  water  subse- 
quently freezes  and  injures  property  on  such  premises,  the  company  is 
liable  in  damages  for  the  injury,  since  the  negligent  escape  of  the  water 
from  the  tank  in  ordinary,  natural  sequence  caused  a  result  that  under 
the  circumstances  should  have  been  expected.  The  negligence  of  the 
company  in  permitting  the  water  to  run  on  the  premises  was  the 
proximate  cause  of  the  injury  to  the  property  from  the  freezing  of 
the  water.     Chicago  &  Northwestern  Ry.  Co.  v.  Hoag,  90  111.  339. 

Where  a  means  such  as  a  fence  or  a  cover,  or  the  like,  has  been  pro- 
vided by  the  owner  of  property  to  protect  it  from  an  injury  that 
will  probably  occur,  and  such  means  are,  without  the  fault  of  the 
owner,  injured  or  destroyed  by  the  negligent  act  or  omission  of  another, 
who  under  the  circumstances  of  the  case  knew,  or  should  have  known, 
of  the  use  to  which  the  means  was  applied  and  of  the  injury  that  would 
probably  result  from  the  destruction  of  such  means,  damages  may  be 
recovered  for  injuries  to  the  property  that  was  so  protected,  which 
proximately  follow  or  result  from  the  destruction  of  the  means  pro- 
xided  for  the  protection  of  the  property  injured.  Garrett  v.  Sewell, 
108  Ala.  521,  18  South.  737;  Krebs  Mfg.  Co.  i\  Brown,  108  Ala.  508, 
18  South.  659,  54  Am.  St.  Rep.  188;  Miller  i\  St.  Louis,  I.  M.  &  S.  Ry. 
Co.,  90  Mo.  389,  2  S.  W.  439. 

The  declaration  alleges  that  the  defendant  so  carelessly  and  negli- 
gently managed  and  operated  one  of  its  locomotives  that  fire  es- 
caped therefrom  and  set  fire  to  and  burned  the  canvas  or  cloth  covering 
to  a  pinery  of  growdng  plants  "situated  near  to  the  track  of  the  de- 
fendant." 

Owners  of  property  have  a  right  to  use  it  in  any  manner  desired 
that  is  not  inconsistent  with  the  rights  of  others.  This  includes  the 
right  of  those  haNang  land  near  a  railroad  track  to  place  a  canvas  cover 
over  plants  growing  on  the  land,  and  the  mere  fact  that  the  cover  is 
within  the  reach  of  sparks  of  fire  emitted  from  a  locomotive  engine 
passing  on  the  track  near  by  does  not  relieve  the  railroad  company 
from  liability  for  its  negligence  in  permitting  the  sparks  to  escape  and 
burn  the  cover.  While  those  havnng  property  are  charged  with  the 
duty  of  caring  for  it,  there  is  no  obligation  to  constantly  guard  and  pro- 


SECT.    IV.]   B.  PINEAPPLE  CO.  V.  ATLANTIC  COAST  LINE  R.  R.  CO.        325 

tect  it  from  injury  by  the  negligence  of  others.  See  Jacksonville, 
T.  &  K.  W.  Ry.  Co.  v.  Peninsular  Land,  Transp.  &  Mfg.  Co.,  27  Fla. 
1,  9  South.  661,  17  L.  R.  A.  33. 

It  is  alleged  that  the  canvas  cover  placed  over  growang  pineapple 
plants  and  fruits  to  protect  them  from  injury  by  cold  and  frost  was 
destroyed  by  the  negligence  of  the  defendant,  who  should  have  known 
the  use  of  the  cover  and  the  protection  it  afforded,  and  that,  because 
of  the  destruction  of  the  dover,  a  cold  and  frost  that  ordinarily  should 
have  been  expected  as  likely  to  occur  at  the  time  and  place  did  occur 
and  injured  the  plants  and  fruit  without  the  fault  of  the  plaintiff! 

If  the  negligent  burning  of  the  canvas  cover  to  the  growing  pine- 
apple plants  and  fruit  defeated  the  sole  object  for  which  the  cover 
was  used,  and  such  negligent  burning  of  the  cover  in  ordinary,  natural 
sequence  caused  the  injury  to  the  growing  plants  and  fruit  by  cold 
and  frost  that  under  the  circumstances  shcmld  have  been  expected, 
as  likely  to  occur  and  injure  the  plants  at  the  time  and  place  of  the 
negligent  burning  of  the  cover,  such  negligent  burning  was  the  proxi- 
mate cause  of  the  injury  to  the  growing  plants  and  fruit  from  cold  and 
frost. 

Injury  to  growing  pineapple  plants  and  fruit  by  ordinary  cold  and 
frost  that  should  have  been  expected  as  likely  to  occur  is  not  such  an 
act  of  God  as  wall  relieve  from  liability  for  such  injury  a  railroad 
company  that  negligently  burned  the  cover  over  the  plants  and  fruit, 
which  cover  was  used  solely  to  protect  the  plants  and  fruit  and  would 
have  prevented  the  injury.  See  Norris  v.  Savannah,  F.  &  W.  Ry.  Co., 
23  Fla.  182,  1  South.  475,  11  Am.  St.  Rep.  355;  Texas  &  P.  Ry.  v. 
Coggin  &  Dunaway  (Tex.  Civ.  App.)  99  S.  W.  1052. 

If  the  injury  would  not  have  resulted  from  the  cold  and  frost,  but 
for  the  negligent  burning  of  the  cover,  the  defendant  is  liable,  as 
such  negligence  made  eft'ective  and  injurious  an  ordinary  natural 
condition  that  should  have  been  contemplated  and  that  would  other- 
wise have  been  harmless. 

Under  the  allegations  of  the  declaration,  the  negligent  burning 
of  the  cover  was  a  primary  and  efficient  act  that  in  ordinary,  natural 
sequence  caused  the  injury  to  the  growing  plants  and  fruit  by  cold 
and  frost;  such  injury  not  being  the  result  of  an  intervening  independ- 
ent efficient  cause,  or  of  an  extraordinary  or  unusual  frost  and  cold 
that  could  not  have  been  foreseen,  or  that  would  have  injured  the 
plants  if  the  cover  had  not  been  burned  by  the  negligence  of  the  defend- 
ant. If  this  is  proved,  the  plaintiff  may  recover  damages  for  the  in- 
jury. 

The  count  of  the  original  declaration  upon  which  recovery  was  had 
was  held  to  be  "fatally  defective  in  not  alleging  negligence,  either 
of  commission  or  omission,  on  the- part  of  the  defend-ant  in  commun- 
icating the  fire"  to  the  canvas  cover,  and  also  in  not  alleging  facts 
"sufficient  to  bring  home  to  the  defendant  that  the  burning  miglit 


326       B.  PINEAPPLE'CO.  V.  ATLANTIC  COAST  LINE  R.  R.  CO.    [cHAP.  III. 

reasonably  have  been  expected  to  result  directly  and  naturally  in 
damage  to  the  plants  and  fruit  by  cold  and  frost."  Atlantic  Coast 
Line  Ry.  Co.  v.  Benedict  Pineapple  Co.,  52  Fla.  165,  42  South.  529. 

Where  negligence  is  the  basis  of  recovery,  the  declaration  should 
contain  allegations  of  the  negligent  act  or  omission  of  the  defendant, 
and  also  allegations  of  facts  to  show  injury  to  the  plaintiff,  and  that 
such  injury  was  a  proximate  result  of  the  negligence  alleged. 

The  declaration  now  in  the  first  count  alleges  that  the  defendant 
"so  carelessly  and  negligently  managed  and  operated  one  of  its  loco- 
motives while  drawing  a  train  of  cars  .  ...  that  fire  escaped  from  said 
locomotive  and  set  fire  to  the  canvas  or  cloth  with  which  a  pinery 
belonging  to  the  plaintiff  and  situated  near  to  the  track  of  the  defend- 
ant .  .  .  was  covered,  and  burned  a  large  part,  to  wit,  about  one 
acre,  of  the  said  cover."  This  is  a  sufficient  allegation  of  a  negligent 
act  of  the  defendant  in  communicating  fire  to  the  canvas  cover,  and 
of  injury  resulting  proximately  therefrom  to  the  plaintiff  when  taken 
with  the  claim  for  damages,  to  authorize  a  recovery  of  general  damages 
or  such  as  naturally  and  necessarily  result  from  the  burning  of  the  can- 
vas cover  to  the  extent  of  its  value. 

As  special  damages  resulting  from  the  negligent  act  alleged,  the 
first  count  further  states:  "That,  in  the  said  pinery,  a  large  number 
of  pineapple  plants  and  fruit  were  growing  and  were  likely  to  be 
damaged  by  frost  and  cold  in  the"  stated  vicinity  and  "the  latitude 
thereof  in  the  winter  season,  and  that  it  was  usual  and  customary  in 
and  about  the  said"  vicinity  "and  latitude  to  cover  pineries  with  can- 
vas or  cloth  in  order  to  protect  the  plants  and  fruit  growing  there- 
in from  damages  by  frost  and  cold,"  and  to  keep  in  the  heat  supplied 
by  fires  maintained  in  the  pineries  during  spells  of  frost  and  cold 
which  ordinarily  come  in  the  winter  season  on  short  notice  and  would 
otherwise  damage  the  plants  and  fruit;  that,  in  accordance  with  said 
custom,  plaintiff  provided  said  pinery  with  a  good  canvas  or  cloth 
cover,  and  also  provided  stoves  and  fuel  therein,  ready  and  sufficient 
within  the  covered  pinery  to  heat  the  same  immediately  upon  the 
coming  of  frost  and  cold  dangerous  to  the  plants  and  fruit,  and  thus 
preserve  them  from  damage  therefrom;  "that  shortly  after  the  burn- 
ing of  the  portion  of  the  cover  as  aforesaid,  and  before  the  plaintiff 
by  exercise  of  any  reasonable  diligence  by  it  could  replace  the  part  of 
the  cover  which  had  been  burned  through  the  negligence  of  the  de- 
fendant as  aforesaid,  the  plants  and  fruit  were  damaged  by  frost  and 
^Id  for  w*,nt  of  the  complete  cover  and  the  subsequent  inability  of 
the  plaintitt'  to  control  the  temperature  within  said  pinery;  that  the 
defendant  well  knew,  or  ought  to  have  known,"  of  the  custom,  condi- 
tions, and  circumstances  alleged;  and  that  the  "damage  was  caused 
by  the  negligence  of  the  defendant  in  burning  part  of  the  cover  as 
aforesaid."     Damages  are  claimed  in  $10,000. 

As  the  defendant  is  liable  for  such  injurious  results  as  were  likely 


SECT.    lY.]   B.  PINEAPPLE  CO.  V.  ATLANTIC  COAST  LINE  R.  R.  CO.        327 

to  and  did  naturally  and  proximately  follow  its  negligence,  it  was 
not  necessary  to  allege,  as  contended,  "  that  at  the  time  of  the  occur- 
rence of  the  fire  the  weather  was  such  that  cold  or  frost  could  be  anti- 
cipated by  the  defendant,"  or  "that  in  the  month  of  January  cold  or 
frost  of  such  character  as  to  damage  pineapple  plants  ordinarily  oc- 
curred." That  the  month  of  January,  when  the  fire  occurred,  was  "in 
the  winter  season,"  the  court  knows  judicially,  and  there  are  allegations 
that  pineapple  plants  and  fruit  are  likely  to  be  damaged  by  frost  and 
cold  in  the  v-icinity  stated  in  the  winter  season,  that  it  was  usual 
and  customary  there  to  cover  the  growing  plants  with  canvas  to  pro- 
tect them  from  damage  by  frost  and  cold,  and  that  the  defendant 
knew,  or  should  have  known,  of  all  the  circumstances  alleged.  If  the 
frost  or  cold  of  any  degree  injured  the  plants  or  fruit  under  the  circum- 
stances alleged,  as  the  proximate  result  of  the  defendant's  negligence, 
it  is  not  necessary  to  state  the  extent  of  the  frost  or  cold  necessary  to 
the  damage,  or  that  such  frost  or  cold  was  likely  to  come  at  the  time 
the  fire  occurred,  because  of  the  then  condition  of  the  weather,  as  is 
insisted  by  the  defendant  in  error.  ' 

If  the  defendant  was  negligent  in  burning  the  cover,  it  cannot  be 
relieved  from  liability  for  the  proximate  results  of  such  negligence 
on  the  ground  that  an  ordinary  natural  condition,  i.  e.,  frost  and  cold, 
intervened,  when  such  ordinary  cold  and  frost  should  have  been  ex- 
pected as  probably  to  occur  at  the  time  and  place  of  the  negligence. 

The  declaration  in  effect  alleges  that  the  cold  which  injured  the  plants 
should,  under  the  circumstances,  have  been  contemplated  by  the  de- 
fendant as  likely  to  occur,  that  the  injury  was  the  natural  result  of  the 
cold,  and  that  such  injury  would  not  have  resulted  but  for  the  negli- 
gence of  the  defendant  that  caused  the  fire  to  destroy  the  covering 
to  the  plants.  The  demurrer  admits  this.  It  is  in  eifect  alleged  that 
by  ordinary,  natural  sequence  the  negligence  of  the  defendant  in 
starting  the  fire  burned  the  covering,  thereby  exposing  the  growing 
plants  and  fruit  to  an  injurious  cold  and  frost  that  under  the  circum- 
stances stated  should  have  been  expected  as  likely  to  occur,  and  the 
plants  and  fruit  were  injured  by  such  cold  and  frost  without  the  fault 
of  the  plaintiff,  because  the  covering  was  destroyed  by  the  fire  started 
by  defendant's  negligence.  It  is  sufficiently  alleged  that  the  negligence 
of  the  defendant  was  the  proximate  cause  of  the  injury  to  the  plants 
and  fruit  by  cold  and  frost. 

The  cold  that  injured  the  plants  was  not  an  independent  efficient 
cause  occurring  between  the  negligence  of  the  defendant  and  the  in- 
jury by  cold  and  frost,  as  such  injury  was  the  natural  and  ordinary 
result  of  cold  and  frost  that  it  is  alleged  should  have  been  expected 
as  likely  to  occur  as  an  ordinary  or  usual  natural  condition  that  would 
not  have  been  harmful  to  the  plants  if  the  covering  had  not  been  de- 
stroyed by  the  fire  negligently  started  by  the  defendant.^ 

1  See  also  Williams  v.  Atlantic  Coast  Line  R.  R.,  56  Fla.  735,  48  So.  209.—  Ed. 


328  HOGAN  V.   BRAGG.  '  [CHAP.  III. 

HOGAN  V.   BRAGG. 
Supreme  Court  of  North  Dakota,  1918. 

[Reported  170  N.  W.  Rep.  324.] 

Robinson,  J.  The  defendant  appeals  from  a  verdict  and  judgment 
for  $1500,  on  the  charge  of  permitting  to  escape  from  his  land  a  prairie 
fire,  whicfl  caused  the  death  of  plaintiff's  husband.  On  March  21, 
1915,  the  ground  being  covered  with  snow  and  defendant  absent  from 
his  home  on  the  southeast  quarter,  24  —  141  —  74,  the  hired  man  of 
defendant  did  of  his  own  motion  set  fire  to  a  straw  bottom  about  half 
a  mile  from  the  house.  On  April  5,  as  the  snow  had  melted  and  the 
straw  bottom  was  still  smoldering,  the  defendant  plowed  around  it 
six  furrows  with  a  gang  plow.  Then  another  snow  fell  and  lay  for 
about  six  days,  till  the  fire  had  apparently  burned  out.  However,  at 
noon  of  April  9,  a  high  wind  from  the  northwest  started  up  the  smolder- 
ing fire.  This  the  defendant  observed,  and  with  his  hired  man  has- 
tened toward  the  fire,  which  was  instantly  blown  from  the  straw  bottom 
to  the  stubble  and  the  prairie,  and  the  result  was  an  immediate  and 
uncontrollable  prairie  fire. 

Soon  a  number  of  persons  arrived  on  the  scene,  and  all  of  them  took 
part  in  fighting  the  fire.  But  as  the  wind  continued  to  blow  -wath 
great  and  increasing  violence,  the  fire  flew  over  the  prairie.  With 
several  others,  Hogan,  the  deceased,  took  the  risk  of  attempting  to 
back-fire,  and  he  was  caught  in  the  onrushing  flame  and  fatally  burned, 
so  he  died  on  the  same  day. 

When  the  fire  was  started,  it  was  not  subject  to  the  control  of 
any  person,  and  it  behooved  all  persons  to  keep  out  of  its  way.  "  No 
man  is  responsible  for  that  which  no  man  can  control."  Maxims 
(C'omp.  Laws  1913,  §  72G0).  Even  if  defendant  was  negligent  in  per- 
mitting the  fire  to  escape  from  his  land,  he  was  liable  only  for  the  prox- 
imate loss,  and  not  for  a  death  resulting  from  a  person  rushing  into  or 
in  front  of  an  onrushing  flame.  Such  a  loss  is  too  remote.  "  For  the 
breach  of  an  obligation  not  arising  from  contract,  the  measure  of 
damages  ...  is  the  amount  which  will  compensate  for  all  the  detri- 
ment proximately  caused  thereby."     C  L.  §  7165. 

Proximate  cause  is  that  which  in'  a  natural  and  continuous  se- 
quence produces  the  event.  32  Cyc.  745.  "In  order  to  find  that  an 
act  not  a  willful  wrong  is  the  proximate  cause  of  an  injury,  it  must 
appear  that  the  injury  was  the  natural  and  probable  consequence  of 
the  negligence  or  wTongful  act  and  that  it  ought  to  have  been  fore- 
seen and  guarded  against."  Milwaukee  &  St.  P.  Ry.  Co.  v.  Kellogg, 
94  U.  S.  469,  475,  24  L.  Ed.  256. 

True,  the    statute    makes    it   a  misdemeanor  to  set  fire    to    any 


SECT.  IV.]  MATHEWS  V.   KANSAS  CITY  RAILWAYS  CO.  329 

woods,  marsh,  prairie,  or  stubble  lands  except  in  the  months  of  July 
and  August,  without  first  plowing  around  the  same  a  strip  of  land  50 
feet  wide.  Sections  2791,  2792.  But  here  there  was  no  setting  fire  to 
woods,  marsh,  prairie,  or  stubble.  Hence  the  prairie  fire  statute  has 
no  application.  The  fire  was  set  to  the  bottom  of  an  old  strawstack, 
when  the  ground  was  covered  with  snow,  and  when  there  was  not  the 
least  apparent  danger.  Such  a  fire  is  a  matter  of  common  and  yearly 
occurrence  on  nearly  every  farm;  and  defendant  was  in  no  manner 
guilty  of  even  ordinary  negligence  in  permitting  the  escape  of  the  fire 
after  the  lapse  of  12  days  and  after  the  second  snow;  he  had  no  rea- 
son to  suspect  the  possibility  of  such  a  fire  and  its  escape  across  the 
six  furrows  which  he  had  plowed. 

By  §  5948,  every  one  is  responsilile,  not  only  for  the  result  of  his 
wilful  acts,  but  also  for  an  injury  occasioned  to  another  by  his  want  of 
ordinary  care  or  skill  in  the  management  of  his  property  or  person, 
except  so  far  as  the  latter  has  ^Wlfully  or  by  want  of  ordinary  care 
brought  the  injury  upon  himself.  It  is  on  this  statute  that  plaintiff 
must  base  her  claim  to  recover  for  the  accident,  and  there  is  no  evi- 
dence to  charge  the  plaintiff  wath  any  lack  of  ordinary  care,  and,  as 
the  evidence  does  show  beyond  question,  the  deceased  brought  the 
injury  upon  himself  by  want  of  ordinary  care.  Without  reason  or 
necessity  he  purposely  ran  into  the  path  of  an  onrushing  prairie  fire, 
and  thereby  risked  and  lost  his  life.  There  was  no  evidence  to  sus- 
tain the  verdict  for  the  plaintiff,  and  on  the  evidence  it  is  clear  that 
the  plaintiff  has  no  cause  of  action. 

Judgment  reversed,  and  action  dismissed. 


MATHEWS  V.  KANSAS  CITY  RAILWAYS  CO. 

Supreme  Court  of  Kansas,  1919. 

[Reported  104  Kansas  92.]      ■ 

Johnston,  C.  J.  John  B.  ]VIathews  sued  for  and  recovered  damages 
from  The  Kansas  City  Railways  Company  for  personal  injuries  sus- 
tained by  him  through  defendant's  negligence,  while  a  passenger  on 
one  of  its  cars. 

In  his  petition  he  alleged,  in  substance,  that  the  car  on  which  he  be- 
came a  passenger  was  greatly  crowded,  and  that  when  he  boarded  it 
he  took  a  position  in  the  aisle  near  the  front  end"  of  the  car,  steadying 
himself  by  holding  to  a  strap  provided  for  that  purpose.  When  they 
reached  a  certain  point  on  the  line  another  car  of  the  defendant  col- 
lided with  the  one  on  which  he  was  riding  with  such  force  and  \nolence 
as  to  throw  him  backward  over  the  top  of  a  seat  in  the  car,  causing 
concu.ssion  of  the  brain,  injury  to  the  spinal  column,  severe  sufferings 


330  FULTON  V.   KL\LBACH.  [CHAP.  III. 

and  as  a  result  of  his  injuries  he  has  partially  lost  control  of  his  lower 
limbs,  and  that  since  his  injury  he  has  been  unable  to  sleep,  and  has 
lost  the  use  of  his  sexual  powers. 

The  answer  was  a  general  denial,  and  upon  the  evidence  of  plaintiff, 
the  defendant  not  having  offered  any,  the  jury  awarded  damages  to 
the  plaintiff  in  the  sum  of  $15,000.  In  its  appeal,  defendant  first  con- 
tends that  its  demurrer  to  plaintiff's  evidence  should  have  been  sus- 
tained. It  is  insisted  that  the  evidence  does  not  show  that  the  force 
of  the  collision  was  sufficient  to  throw  the  plaintiff  down;  that  it  does 
show  that  his  fall  was  caused  by  another  passenger  tlorowing  himself 
against  the  plaintiff;  and  that,  therefore,  the  collision  was  not  the 
proximate  cause  of  plaintiff's  injury.  There  is  abundant  evidence 
that  the  car  was  struck  with  such  force  as  to  break  the  straps  which 
the  standing  passengers  were  holding,  and  to  throw  them  doum.  One, 
a  man  named  Woulf,  was  standing  next  to  plaintiff,  and  it  is  shown  that 
the  shock  of  the  collision  threw  several  of  the  passengers  violently  one 
against  the  other,  and  some  of  them  against  Woulf,  who  was  thrown 
against  the  plaintiff,  who  in  turn  fell  across  the  iron  bracket  of  a  seat. 
It  does  not  require  argument  or  authorities  to  demonstrate  from  the 
testimony  that  the  efficient  producing  cause  of  the  fall  and  injury  of 
the  plaintiff  was  the  collision.  It  stood  first  in  the  line  of  causation, 
and  but  for  it  the  injury  of  the  plaintiff  would  not  have  occurred.  .  .  . 

The  judgment  is  affirmed. 


FULTON  V.  KALBACH. 
Supreme  Court,  New  York,  1920. 

[Reported  179  N.  Y.  Supp.  604.] 

MuLLAN,  J.  Plaintiff  was  a  passenger  on  one  of  the  defendant's 
closed  cars,  north-bound.  She  testified  that  she  had  arisen  from  her 
seat,  and  was  walking  down  the  aisle  to  the  rear  of  the  car,  when  she 
was  thrown  violently  to  the  floor  of  the  car  by  its  sudden  stoppage, 
shown,  by  other  witnesses,  to  have  been  caused  by  the  front  of  the  car 
coming  into  collision  with  the  rear  of  a  truck. 

It  was  very  plainly  a  case  for  the  jury's  determination,  and  the 
only  assignment  of  error  we  deem  it  necessary  to  notice  relates  to  the 
charge  of  the  learned  trial  judge.  The  plaintiff's  story  was  that, 
desiring- to  alight  at  102d  street,  she  had  stood  up  and  signaled  to  the 
conductor  to  stop,  just  after  the  car  had  left  101st  street.  ConcededI\' 
the  collision  occurred  a  little  north  of  102d  street.  The  conductor 
testified  that  the  plaintiflf  had  not  signaled  to  her  to  signal  to  the 
motorman,  and  that  she,  the  conductor,  had  not  signaled  to  him. 
The  motorman  swore  that  he  heard  no  signal  from  the  conductor. 


SECT.  IV.]  FULTON  V.   KALBACH.  331 

The  learned  judge,  in  his  charge  to  the  jury,  gave  them  the  following 
instruction : 

"  But  if  you  find  that  the  plaintiff's  version  be  correct,  if  you  believe 
the  testimony  of  the  plaintiff's  witnesses  that  the  conductorette  was 
notified  to  stop  the  car  at  102d  street,  that  the  signal  was  given  as 
testified  here,  and  that  the  motorman  failed  to  stop,  then,  of  course, 
you  must  find  —  assuming  now  that  you  find  that  the  plaintiff"  did  what 
she  was  required  to  do  under  the  circumstances  —  then  you  must  find 
that  the  accident  is  chargeable  to  the  defendant  company." 

Exception  was  duly  taken  to  this  plainly  erroneous  instruction. 
The  failure  to  stop  at  102d  street  was  not  the  proximate  cause  of  the 
accident;  it  merely  was  causa  sine  qua  non.  The  causa  causans  was 
the  collision,  and  the  proper  question  for  the  jury's  determination  was 
whether  th^  defendant  was  or  was  not  responsible  for  the  collision, 
no  matter  where  it  occurred. 

Judgment  reversed,  and  a  new  trial  ordered,  with  $30  costs  to  appellant 
to  abide  the  event.    All  concur. 


332  LOCKE  V.    STEAKNS.  [CHAP.  IV. 


SECTION   I. 

Hesjjondeat  Superior. 

HERN  V.   xNICHOLS. 

Nisi  Prius.     17 — , 

[Reported  1  Salk:  289.] 

In  an  action  on  the  case  for  a  deceit,  the  plaintiff  set  forth,  that 

he  bought  several  parcels  of  silk  for silk,  whereas  it  was  another 

kind  of  silk;  and  that  the  defendant,  well  knowing  this  deceit,  sold  it 

him  for silk.    On  trial,  upon  not  guilty,  it  appeared  that  there  was 

no  actual  deceit  in  the  defendant  who  was  the  merchant,  but  that  it 
was  his  factor  beyond  sea:  And  the  doubt  was.  If  this  deceit  could 
charge  the  merchant?  And  Holt,  C.  J.,  was  of  opinion  that  the  mer- 
chant was  answerable  for  the  deceit  of  his  factor,  though  not  criminal- 
iter,  yet  civiliter;  for  seeing  somebody  must  be  a  loser  b^'  this  deceit, 
it  is  more  reason  that  he  that  employs  and  puts  a  trust  and  confidence 
in  the  deceiver  should  be  a  loser,  than  a  stranger:  And  upon  this  opinion 
the  plaintiff  had  a  verdict. 


LOCKE  V.  STEARNS. 
Supreme  Judicial  Court  of  Massachusetts,  1840. 

[Reported  1  Met.  560.] 

Trespass  upon  the  case  in  the  nature  of  deceit.  The  declaration 
alleged  that  the  defendants  fraudulently  sold  to  the  plaintiff  divers 
quantities  of  meal,  as  and  for  linseed  meal,  which  was  in  fact  a  mixture 
of  linseed  meal  and  teelseed  meal;  the  latter  being  of  a  quality  inferior 
to  the  former,  and  of  less  value.  The  action  was  commenced  against 
G.  L.  Stearns,  H.  L.  Stearns,  and  G.  C.  Hall,  but  the  writ  was  not 
served  on  Hall. 


CHAPTER   IV.  l| 

LIABILITY   IRRESPECTIVE   OF   PROXIMATE   CAUSATION. 


SECT.  I.]  LOCKE  V.    STEAKXS.  333 

At  the  trial  in  the  court  of  common  pleas,  before  Strong,  J.,  it  was 
proved  or  admitted,  that  the  three  persons  above  mentioned  were 
in  partnership  in  the  business  of  manufacturing  oil  from  linseed,  at 
their  factory  in  Medford;  that  the  selling  of  linseed  meal  was  within 
the  regular  business  of  said  partnership;  that  the  meal  mentioned  in 
the  plaintiff's  declaration  was  sold  to  him  as  hereinafter  stated;  and 
that,  at  the  time  of  the  sale  thereof,  L.  Richardson  was  the  foreman 
of  the  defendants  in  their  said  factory. 

It  was  in  evidence  that  teelseed  was  recentl}'  introduced  into  this 
country,  and  that  the  defendants  began  to  use  it  in  the  making  of  oil, 
as  a  substitute  for  linseed,  in  the  latter  part  of  the  year  1837;  and  that 
they,  or  some  of  them,  began  to  mix  the  teelseed  meal  with  the  linseed 
meal,  about  the  middle  of  January,  1838:  That  said  Richardson,  about 
that  time,  was  directed  by  G.  L.  Stearns,  to  mix  the  two  kinds  of  meal, 
and  that  H.  L.  Stearns  had  said  that  "the}'  put  in  one  half  teelseed 
meal,  in  the  meal  which  they  sold;  and  that  their  cattle  would  not  eat 
the  teelseed  meal,  unless  linseed  meal  was  mixed  with  it":  That  the 
meal  mentioned  in  the  plaintiff's  declaration  was  sold  to  him  at  differ- 
ent times,  during  a  period  of  several  months,  as  linseed  meal,  by 
Richardson,  or  by  one  of  the  defendants;  that  said  meal,  or  portions 
of  it,  was  a  mixture  of  teelseed  and  linseed;  but  that  the  plaintiff  had 
no  notice  that  it  was  not  all  linseed  meal;  and  that  said  meal,  so  mixed, 
was  of  less  value  than  clear  linseed  meal. 

Among  other  instructions,  given  by  the  judge  to  the  jury,  were 
these:  "  1.  That  if  one  of  the  defendants  sold  the  meal  to  the  plaintiff", 
such  defendant  knowing  that  teelseed  meal  was  of  an  inferior  quality 
and  less  value  than  linseed  meal,  this  knowledge  would  bind  all  the 
defendants,  and  be  the  same  as  if  they  all  knew  it.  2.  That  if  L. 
Richardson,  as  foreman  of  the  defendants,  acting  within  the  scope  of 
his  authority,  sold  the  meal  to  the  plaintiff,  he  (Richardson)  knowing 
that  teelseed  meal  was  of  an  inferior  quality  and  of  less  value  than 
linseed  meal,  this  knowledge  would  bind  the  defendants,  and  be  the 
same  as  if  the  defendants  knew  it." 

A  verdict  was  found  for  the  plaintiff,  and  the  defendants  alleged 
exceptions  to  the  above  instructions. 

Shaw,  C.  J.  Most  of  the  questions,  in  the  present  case,  turned 
upon  matters  of  fact  and  were  decided  by  the  jury.  The  evidence, 
taken  in  connection  with  the  verdict,  shows  that  the  purpose  of  the 
plaintiff  was  to  purchase  of  the  defendants  linseed  meal,  and  that  the 
defendants,  who  carried  on  the  business  of  manufacturing  oil  from 
seed,  so  understood  it,  but  that  they,  that  is,  one  of  them  personally, 
when  present,  and  their  foreman  ajid  general  agent,  acting  within  the 
scope  of  his  authority,  when  they  were  absent,  delivered  to  the  plaintiff' 
an  inferior  article,  called  teelseed  meal,  mixed  with  the  linseed,  in  such 
a  manner  as  to  deceive  the  plaintiff,  who  purchased  and  paid  for  the 
whole  as  linseed,  without  knowledge  of  such  mixture. 


334  LOCKE    V.    STEARNS.  [CHAP.  IV. 

The  defendants  object  to  two  of  the  instructions  of  the  court  of 
common  pleas,  as  being  incorrect  in  point  of  law.  [Here  the  chief 
justice  stated  the  instructions  excepted  to.]  But  we  are  of  opinion 
that  both  those  instructions  were  right.  For  although  the  action  in 
form  charges  the  defendants  jointly  for  a  deceit  done  by  one  only, 
or  by  an  agent,  yet  it  is  still  a  civil  action,  and  the  claim  is  for  damages. 

The  deceit  was  done  for  the  defendants'  benefit,  by  their  agent 
acting  under  their  orders,  in  the  conduct  of  their  general  business,  and 
responsible  to  them ;  and  when  one  party  must  suffer  by  the  wrong  and 
misconduct  of  another,  it  is  more  reasonable  that  he  should  sustain 
the  loss,  who  reposes  the  confidence  in  the  agent,  than  he  who  has 
given  no  such  confidence.  Hern  r.  Nichols,  1  Salk.  289.  The  point  is 
well  illustrated  by  the  law  of  insurance,  where  the  party  is  always  held 
responsible  civiliter,  for  the  fraudulent  misrepresentation  or  other  deceit, 
or  for  the  negligence,  of  his  agent.  Fitzherbert  v.  Mather,  1  T.  R.  12. 
But  the  rule  is  not  confined  to  cases  of  insurance,  in  relation  to  which 
a  somewhat  stricter  morality,  perhaps,  is  held  to  prevail;  but  it  is 
laid  down  as  a  general  rule  of  the  common  law,  that  the  principal  is 
civilly  responsible  for  the  acts  of  his  agent.  Doe  v.  Martin,  4  T.  R.  66. 
In  a  late  case,  in  which  it  was  held  that  a  master  was  liable  for  the  acts 
of  his  servant  in  a  case  quasi  criminal  —  as  for  penalties  incurred  by  a 
violation  of  the  revenue  laws  —  it  was  taken  for  granted,  on  all  sides, 
that  for  deceit  in  articles  sold  by  a  servant  in  the  shop  of  his  master, 
or  for  acts  done  in  the  manufacture  of  articles  in  a  manufactory  usually 
carried  on  by  the  master,  the  latter  is  answerable.  Attorney  General 
V.  Siddon,  1  Tyrw.  41.  S.  C.  1  Crompt.  &  Jerv.  220.  The  rule  pro- 
ceeds upon  the  ground  that  the  servant  is  acting  within  the  scope  of 
his  authority,  actual  or  constructive.  The  case  of  a  sherifl^  who  is 
lial)le  ciinliter,  even  in  an  action  of  trespass,  for  the  misconduct  of  his 
deputy,  is  another  familiar  application  of  the  same  rule.  Grinnell  v. 
Phillips,  1  Mass.  530.  The  rule  is  laid  down  generally,  in  a  recent  com- 
pilation of  good  authority,  that  though  a  principal,  in  general,  is  not 
liable  criminally  for  the  act  of  his  agent,  ^'et  he  is  ciA'illy  liable  for  the 
neglect,  fraud,  deceit,  or  other  wrongful  act  of  his  agent  in  the  course  of 
his  employment,  though  in  fact  the  principal  did  not  authorize  the 
practice  of  such  acts;  but  the  wrongful  or  unlawful  acts  must  be  com- 
mitted in  the  course  of  the  agent's  employment.  3.  Chit.  Law  of  Com. 
&  Man.  209,  210. 

.\s  to  the  other  point,  which  is  indeed  little  more  than  a  further 
application  of  the  same  principle,  it  is  laid  down,  as  the  general  rule, 
that  one  partner  is  liable  civiliter  for  damages  sustained  by  the  deceit 
or  other  fraudulent  act  of  his  copartner  done  within  the  scope  of  his 
general  partnership  authority.  Collyer  on  Partnership,  241.  Rapp  v. 
Latham,  2  Barn.  &  Aid.  795.    Willet  i\  Chambers,  Cowp.  814. 

Two  cases  were  cited,  by  the  counsel  for  the  defendant,  to  support 
the  contrary  doctrine;  but  we  think  they  are  both  distinguishable  from 


SECT.  I.]  HIGGINS    V.  WATERVLIET    TURNPIKE    CO.  335 

the  present.  In  Pierce  v.  Jackson,  6  Mass.  245,  it  is  said  by  Parsons, 
C.  J.,  in  the  course  of  his  opinion,  that  "a  fraud  committed  by  one  of 
the  partners  shall  not  charge  the  partnership."  This  must  be  taken 
in  connection  with  the  subject  matter  to  which  it  was  applied.  That 
action  was  not  brought  by  an  innocent  party  who  had  sustained  damage 
by  the  fraudulent  act  of  a  partner  in  the  course  of  the  partnership 
business.  On  the  contrary,  it  was  a  case  of  competition  between 
different  classes  pf  creditors,  one  of  whom  was  a  creditor  of  one  of  the 
partners,  and  the  other  claimed  a\  preference  as  creditor  of  the  firm. 
But  it  appeared  that  one  of  the  partners  had,  b}'  fraud  and  by  means  of 
a  forged  indorsement  of  a  note,  given  or  attempted  to  give  the  latter 
creditor  a  preference  to  which  he  was  not  entitled.  It  was  in  reference 
to  this  transaction  that  the  remark  above  cited  was  made.  The  plain- 
tiff, in  that  case,  must  have  been  in  collusion  with  one  of  the  partners 
to  obtain  an  undue  preference;  and  to  have  sustained  the  claim  of 
preference,  under  those  circumstances,  would  have  been  to  give  effect 
to  a  fraudulent  and  collusive  act,  in  favor  of  a  party  to  the  collusion, 
against  an  honest  creditor. 

The  other  case  cited  was  Sherwood  r.  Marwick,  5  Greenl.  295. 
In  that  case,  two  persons  were  the  beneficial  owners  of  a  foreign  vessel 
held  in  the  name  of  a  third  person.  One  of  them,  under  a  power  from 
that  third  person,  sold  the  vessel,  and  at  the  time  of  the  sale  made  a 
false  representation  of  her  national  character.  The  other  was  sued  by 
the  purchaser,  in  an  action  to  recover  damages  alleged  to  have  been 
sustained  by  reason  of  such  false  representation.  It  was  held  that  he 
was  not  liable.  The  defendant  and  the  seller,  in  that  case,  were  not 
general  partners,  if  indeed  they  were  partners  at  all.  The  seller  was 
not  the  general  agent  of  the  defendant,  nor  had  he  an^-  authority, 
actual  or  constructive,  to  act  for  him.  It  seems  to  us  therefore  quite 
clear  that  the  decision  in  that  case  is  not  in  conflict  with  ours  in  the 
present. 

Exceptions  overruled. 


HIGGINS  V.  WATERVLIET  TURNPIKE  CO. 
Court  of  Appeals,  New  York,  1871. 
[Reported  46  A'.  }'.  23.] 

On  the  13th  day  of  July,  1866,  plaintiff  was  a  passenger  on  defend- 
ant's horse  car  in  the  city  of  Albany.  He  had  paid  his  fare,  and  was 
forcibly  thrown  from  the  car  by  defendant's  conductor  and  driver 
who  claimed  that  he  was  drunk  and  disorderly.  He  ga^o  eAidenr(> 
tending  to  show  this  was  not  so,  and  the  jury  so  found. 

Andrews,  J.  I'pon  the  theory  that  the  act  of  the  conductor,  in 
removing  the  plaintiff  from  the  car,  was  unlawful,  and  was  not  justi- 


336  HIGGIXS    V.  WATEEVLIET    TURNPIKE    CO.  [CHAP.  IV. 

fied  by  the  circumstances,  the  court  was  requested  by  the  counsel  for 
the  defendant  to  charge  the  jury,  that  the  phiintiff  could  not  recover 
for  any  personal  injuries  occasioned  by  the  assault  of  the  conductor, 
there  being  no  evidence  of  authority  from  the  company  to  commit  it. 

Upon  the  other  theory  of  the  case,  that  the  expulsion  was  justified 
by  the  conduct  of  the  plaintiff,  but  that  unnecessary  force,  occasioning 
injury,  was  used  in  ejecting  him,  the  court  charged,  that  the  defend- 
ant was  liable  for  such  injury. 

Exception  was  taken  by  the  defendant  to  the  refusal  of  the  court 
to  charge  as  requested,  and  to  the  charge  made.  These  exceptions 
present  the  questions  made  upon  the  argument. 

The  main  contention  on  the  trial  related  to  the  conduct  of  the  plain- 
tiff immediately  before  his  remo\al  from  the  car. 

The  evidence  on  the  part  of  the  defendant  tended  to  show  that  he 
was  noisy  and  disorderly ;  that  he  refused  to  obey  the  reasonable  direc- 
tiotis  of  the  conductor,  and  that  his  expulsion  was  justified  by  his  mis- 
conduct. 

This  version  of  the  facts  was  controverted  by  the  plaintiff,  and  we 
cannot  decide,  as  a  question  of  law,  that  the  jury  were  not  justified 
in  finding  with  the  plaintiff  upon  this  issue. 

But  there  is  no  evidence  that  the  act  of  the  Conductor  was  prompted 
by  malice,  or  any  wrongful  intention,  or  by  any  motive,  except  to 
discharge  what  he  supposed  to  be  his  duty  under  the  circumstances. 
The  request  to  charge  must  be  regarded  as  having  been  made  with 
reference  to  this  view  of  the  facts,  otherwise  it  was  irrelevant  and  in- 
applicable to  the  case. 

The  expulsion  of  the  plaintiff,  if  not  justified  by  his  misconduct, 
was  an  unlawful  assault,  and  the  fjuestion  arises,  whether  the  defendant 
is  responsible  for  the  injury  occasioned  by  the  unlawful  act  of  its  ser- 
vant, done  under  a  mistake  of  facts,  or  a  mistake  of  judgment  upon 
the  facts,  though  in  the  course  of  the  business  of  his  master. 

This  question  must  be  answered  in  the  affirmative,  in  view  of  the 
nature  of  the  service  in  which  the  conductor  was  engaged,  and  the 
principle  upon  which  the  liability  of  the  master  for  the  acts  of  the 
servant  rests. 

The  conductor  was  put  b}-  the  defendant  in  charge  of  the  car. 
Passengers  were  bound  to  conform  to  the  reasonable  rules  and  regula- 
tions of  the  company,  and  to  behave  themselves  in  an  orderly  manner, 
promoting  thereby  the  mutual  interest  of  the  company  and  the  public. 

The  company  had  the  right  to  enforce  order  and  decency,  by  expell- 
ing from  the  car  a  passenger  guilty  of  disorderly  and  indecent  conduct. 

The  defendant  could  only  act  through  agents.  The  appointment 
of  a  conductor  carried  with  it  as  an  incident  authority  to  maintain 
order,  and  to  eject  a  passenger  who  had  forfeited  his  right  to  be  carried 
by  his  misconduct. 

This  authority,  it  is  true,  was  confined  to  the  expulsion  of  persons 


SECT,  I.]  HIGGINS   V.   WATERVLIET    TUKNI'IKK   CO.  337 

who,  in  fact,  misbehaved  themselves  so  as  to  justify  their  expulsion; 
but  whether,  in  a  given  case,  the  misconduct  was  such  as  to  justify  an 
expulsion,  must  necessarily  be  determined  at  the  time  of  the  transac- 
tion. 

The  duty  of  deciding  is  cast  upon  the  conductor;  he  represents  the 
defendant;  he  may  misunderstand  or  misjudge  the  facts;  he  may  act 
unwisely  or  imprudently,  or  even  recklessly;  but  the  business  of  pre- 
serving order  and  enforcing  the  regulations  of  the  company  is  com- 
mitted to  him,  and  for  his  acts  in  that  business  the  company  is 
responsible. 

The  master's  liability  for  the  negligence  or  tort  of  his  servant  does 
not  depend  upon  the  existence  of  an  authority  to  do  the  particular  act 
from  which  the  injury  resulted.  In  most  cases  where  the  master  has 
been  held  liable  for  the  negligence  of  his  servant,  not  only  was  there  an 
absence  of  authority  to  commit  the  wrong,  but  it  was  committed  in 
\'iolation  of  the  duty  which  the  servant  owed  to  the  master.  Th^  prin- 
cipal is  bound,  by  a  contract  made  in  his  name  by  an  agent,  only  when 
the  agent  has  an  actual  or  apparent  authority  to  make  it;  but  the 
liability  of  a  master  for  the  tort  of  his  servant  does  not  depend  primarily 
upon  the  possession  of  an  authority  to  commit  it.  The  question  is  not 
solved  by  comparing  the  act  with  the  authority. 

It  is  sufficient  to  make  the  master  responsible  civilitcr,  if  the  wrongful 
act  of  the  servant  was  committed  in  the  business  of  the  master,  and 
within  the  scope  of  his  employment,  and  this,  although  the  servant, 
in  doing  it,  departed  from  the  instructions  of, his  master.  This  rule  is 
founded  upon  pul)lic  policy  and  convenience.  Every  person  is  bound 
to  use  due  care  in  the  conduct  of  his  business.  If  the  business  is  com- 
mitted to  an  agent  or  ser^•ant,  the  obligation  is  not  changed. 

The  omission  of  such  care  by  the  latter  is  the  omission  of  the  princi- 
pal, and  for  injury  resulting  therefrom  to  others,  the  principal  is  justly 
held  liable.  If  he  emplo\'s  incompetent  or  untrustworthy  agents  it 
is  his  fault ;  and  whether  the  injury  to  third  person^  is  caused  by  the 
negligence  or  positive  misfeasance  of  the  agent,  the  maxim  respondeat 
superior  applies,  provided  only,  that  the  agent  Was  acting  at  the  time 
for  the  principal,  and  within  the  scope  of  the  business  intrusted  to 
him. 

It  is  often  stated,  and  with  sufficient  accuracy  for  general  purposes, 
that  a  master  is  not  liable  for  an  assault  committed  by  his  servant. 

It  is  said  by  Lord  Kenyon,  in  the  leading  case  of  McManus  v. 
Crickett  (1  East,  106),  "that  when  a  servant  quits  sight  of  the  object 
for  which  he  was  employed,  and,  without  having  in  view  his  master's 
orders,  pursues  that  which  his  own  malice  suggests,  his  master  will  not 
be  liable  for  such  acts."  If  for  his  own  purposes,  and  not  in  his  master's 
business,  the  servant  commits  an  assault,  the  master  is  not  responsible; 
and  the  statement  that  the  master  is  not  liable  for  the  assault  of  his 
servant  requires  this  qualification. 


338  HIGGINS   V.   WATERVLIET   TUENPIKE   CO.  [CHAP.  IV. 

In  the  case  of  Sandford  v.  Eighth  Avenue  Railroad  Company  (23 
N.  Y.  343)  the  action  was  brought  to  recover  damages,  resulting 
from  the  death  of  the  plaintiff's  intestate,  caused  by  his  being  thrown 
from  the  car  of  the  defendant,  by  the  conductor,  when  it  was  in  motion. 
The  deceased  refused  to  pay  his  fare,  and  for  that  reason  the  conductor 
ejected  him.  The  court  held  that  the  conduct  of  the  intestate  justi- 
fied the  conductor  in  expelling  him  from  the  car  in  a  proper  manner, 
but  not  when  the  car  was  in  motion,  and  the  defendant  was  held  liable 
for  the  injury.  Comstock,  Ch.  J.,  sa^'s:  "The  case  is,  therefore,  to  be 
stated  thus:  The  defendants  by  their  servant  were  guilty  of  a  personal 
and  intentional  assault  upon  the  intestate.  The  assault,  as  we  think, 
was  not  in  law  justified  by  the  fact,  and  they  are  consequently  without 
a  legal  defense." 

This  case  is  in  point  against  the  defendant  upon  the  question  we 
have  considered,  and  accords  with  the  general  principle,  governing  the 
liability  of  masters  for  the  tortious  acts  of  their  servants.  (Addison 
on  Torts,  23;  Smith  on  Master  and  Servant,  151;  Story  on  Agency 
§  452.) 

The  charge  of  the  court  that  the  defendant  was  responsible  for  the 
excessive  force  used  in  ejecting  the  plaintiff  from  the  car"  assumed 
that  there  was  lawful  cause  for  his  expulsion.  The  charge,  in  our 
opinion,  was,  under  the  proof  in  the  case,  correct,  and  is  supported  by 
the  considerations,  to  which  we  have  adverted,  in  considering  the  other 
exception. 

We  are  not  called  upon  in  this  case  to  determine  what  the  law  is 
as  to  the  master's  responsibility,  in  a  case  where  a  conductor,  though 
justified  in  using  Wolence  in  expelling  a  passenger,  wantonly  and  in- 
tentionally used  unnecessary  force  to  accomplish  it,  and  where  the 
justifiable  and  excessive  force  were  parts  of  a  single  act.  In  this  case 
that  hypothesis  is  inadmissible.  The  evidence  does  not  warrant  the 
supposition  that  the  conductor  acted  in  bad  faith  or  wantonly  used 
unnecessary  \nolence. 

In  Seymour  r.  Greenwood  (7  H.  &  N.  356)  it  was  held  by  the 
Court  of  Exchequer  Chamber,  that  a  master  was  liable  for  an  injury 
caused  by  the  unlawful  and  ^^olent  conduct  of  his  servant  in  the  per- 
formance of  an  act  within  the  course  of  his  employment.  The  case  in 
its  circumstances  was  quite  like  the  case  in  question.  The  guard  of 
the  defendant's  omnibus,  in  remo\'ing  a  passenger  whom  he  deemed  to 
be  drunk,  forcibly  dragged  liim  out  and  threw  him  on  the  ground, 
whereby  he  was  severely  injured.  The  passenger  brought  an  action 
for  the  injury,  and  the  defendant  claimed  that  he  had  not  authorized, 
and  was  not  liable  for  the  acts  of  the  servant.  Williams,  J.,  in  pro- 
nouncing the  unanimous  opinion  of  the  court,  said:  "We  think  there 
was  evidence  for  the  jury  that  the  guard,  acting  in  the  course  of  his 
serv-ice  as  guard  of  the  defendant's  omnibus,  and  in  pursuance  of  that 
employment,  was  guilty  of  excess  and  Aiolence  not  justified  by  the 


SECT.  I.]  BOOMER    V.    WILBUR.  339 

occasion,  or  in  other  words,  misconducted  himself  in  the  course  of  his 
master's  employment,  and,  therefore,  the  master  is  responsible.  It  is 
said,  that  though  it  cannot  be  denied  that  the  defendant  authorized 
his  guard  to  superintend  the  conduct  of  the  omnibuses  generally,  and 
that  such  authority  must  be  taken  to  include  an  authority  to  remove 
any  passenger  who  misconducts  himself,  yet  the  defendant  gave  no 
authority,  to  turn  out  an  inoffensive  passenger,  and  the  plaintiff  was 
one.  But  the  master,  by  giving  the  guard  authority  to  remove  an 
offensive  passenger,  necessarily  gave  him  authority  to  determine 
whether  any  passenger  had  misconducted  himself.  It  is  not  convenient 
for  the  master  personally  to  conduct  the  omnibuses,  and  he  puts  his 
guard  in  his  place;  therefore,  if  the  guard  forms  a  wrong  judgment  the 
master  is  responsible."  (See,  also,  Limpass  v.  London  General  Omnibus 
Company,  1  ».  &  Colt.  526;  Goff  r.  Great  Nor.  R'way  Co.,  30  L.  J. 
Q.  B.  148;  Poulton  v.  London  and  South  Western  R'way  Co.,  2  L.  R. 
2  Q.  B.  534.) 

The  remark  of  one  of  the  judges  in  the  case  of  Hibbard  v.  New  York 
and  Erie  R.  W.  Co.  (15  N.  Y.  467)  may  not,  when  read  in  connection 
with  the  charge  to  which  it  referred,  be  consistent  with  the  views  here 
expressed.  But  the  case  was  decided  upon  another  point,  and  it  is 
not  an  authority  for  the  doctrine  stated  by  the  learned  judge. 

The  judgment  should  be  affirmed. 

All  concur,  but  Peckham,  J.,  not  voting. 

Judgment  affirmed. 


BOOMER  V.  WILBUR. 
Supreme  Judicial  Court  of  Massachusetts,  1900. 

[Reported  176  Mass.  482.] 

Tort,  for  personal  injuries  occasioned  to  the  plaintiff  by  the  fall 
of  brick  and  mortar  from  a  chimney  on  the  house  of  the  defendants  in 
Taunton  upon  the  plaintiff  while  she  was  passing  below  on  the  side- 
walk. At  the  trial  in  the  Superior  Court,  before  Bond,  J.,  the  jury 
returned  a  verdict  for  the  plaintiff;  and  the  defendants  alleged  excep- 
tions, which  appear  in  the  opinion. 

Hammond,  J.  The  court  instructed  the  jury  in  substance  that 
where,  under  a  contract  between  the  owner  of  a  house  and  the  person 
doing  the  w^ork,  work  is  done  upon  the  house,  and  the  owner  retains 
the  right  of  access  to  and  the  control  of  the  premises,  and  such  work  is 
ordinarily  attended  with  danger  to  the  public  unless  proper  precau- 
tions are  taken  to  avoid  it,  the  owner  is  bound  to  the  exercise  of  due 
care  to  see  that  such  precautions  are  taken  for  the  safety  of  the  public; 
and  if  by  reason  of  the  failure  to  take  such  precautions  a  person  law- 
fully on  the  street  and  in  the  exercise  of  due  care  is  injured,  the  owner 


340  BOOMER   V.   WILBUR.  [CHAP.  IV. 

is  answerable  notwithstanding  tlie  work  is  being  done  under  a  contract 
between  him  and  the  contractor.  Having  stated  this  as  a  general  rule, 
the  court  applied  it  to  this  case  as  follows :  "  If  the  defendants  employed 
a  persoa  to  repair  the  chimneys  on  their  buildings  adjoining  the  high- 
way under  the  contract,  to  repair  them  for  a  fixed  sum,  and  the  de- 
fendants retained  the  right,  retained  control,  and  the  right  of  access 
to  the  building,  and  such  work  on  the  chimneys  would  ordinarily  be 
attended  with  danger  to  the  public  unless  proper  precautions  to  avoid 
it  were  taken,  the  defendants  were  bound  to  take  proper  precautions, 
or  to  see  that  proper  precautions  were  taken,  for  the  safety  of  the  public; 
and  if  the  plaintiff  was  injured  while  she  was  lawfully  on  the  street, 
adjoining  the  defendants'  premises,  and  in  the  exercise  of  due  care,  by 
reason  of  the  failure  of  the  defendants  to  take  proper  precautions,  or 
by  reason  of  their  failure  to  see  that  proper  precautions  were  taken,  to 
avoid  such  injury,  then  the  defendants  are  liable  for  the  injury." 

We  understand  these  instructions  to  mean  that,  even  if  the  defend- 
ants employed  a  competent,  independent  contractor  to  repair  these 
chimneys,  who  was  to  do  the  work  without  any  dictation  or  supervision 
on  the  part  of  the  defendants  over  the  details  of  the  work  or  the  manner 
in  which  it  should  be  done,  the  defendants  would  be  answerable  for 
the  failure  of  the  contractor  to  take  proper  precautions  to  protect 
travelers  upon  the  highway  from  falling  bricks. 

While  the  master  is  liable  for  the  negligence  of  the  servant,  yet 
when  the  person  employed  is  engaged  under  an  entire  contract  for  a 
gross  sum  in  an  independent  operation,  and  is  not  subject  -to  the  direc- 
tion and  control  of  his  employer,  the  relation  is  not  regarded  as  that  of 
master  and  servant,  but  as  that  of  contractor  and  contractee;  and  in 
such  case  the  general  rule  is  that  the  negligence  of  the  contracting 
party  cannot  be  charged  upon  him  for  whom  the  work  is  to  be  done; 
and  this  rule  is  applicable  even  where  the  owner  of  the  land  is  the  person 
who  hires  the  contractor,  and  for  whose  benefit  the  work  is  done. 
Hilliard  v.  Richardson,  3  Gray,  349.  Forsyth  v.  Hooper,  11  Allen,  419. 
Conners  v.  Hennessey,  112  Mass.  96.  Harding  v.  Boston,  163  Mass.  14, 
18.  There  are,  however,  some  well-known  exceptions  to  the  rule. 
If  the  performance  of  the  work  will  necessarily  bring  wrongful  conse- 
quences to  pass  unless  guarded  against,  and  if  the  contract  cannot  be 
performed  except  under  the  right  of  the  employer  who  retains  the  right 
of  access,  the  law  may  hold  the  emplo\'er  answerable  for  negligence  in 
the  performance  of  the  work. 

W^oodman  v.  Metropolitan  Railroad,  149  Mass.  335,  was  such  a  case, 
and  the  defendant  was  held  liable  for  the  act  of  an  independent  con- 
tractor hired  by  it  to  dig  up  and  obstruct  the  streets  for  the  purpose 
of  laying  down  the  track,  upon  the  ground  that  the  contract  called  for 
an  obstruction  to  the  highway  which  necessarily  would  be  a  nuisance 
unless  properly  guarded  against. 

The  same  principle  is  further  illustrated  in  Curtis  v.  Kiley,   153 


SECT.  I.]  BOOMER   V.   WILBUR.  341 

Mass.   123,  and  Thompson  v.  Lowell,  Lawrence,  &  Haverhill  Street 
Railway,  170  Mass.  577. 

Again,  if  the  contract  calls  for  the  construction  of  a  nuisance  upon 
the  land  of  the  employer,  he  may  be  held  answerable  for  the  conse- 
quences. In  Gorham  v.  Gross,  125  Mass.  232,  the  defendant  had 
caused  to  be  constructed  by  an  independent  contractor  a  party  wall, 
half  on  the  defendant's  land  and  half  upon  adjoining  land,  and  after 
it  was  completed  and  accepted  it  fell,  causing  damage  to  the  property 
of  the  adjoining  landowner.  There  was  e^'idence  that  the  fall  of  the 
wall  was  occasioned  by  negligence  in  its  construction.  The  court 
said  that  the  wall  as  constructed  was  a  nuisance  "likely  to  do  mis- 
chief," and  held  the  defendant  answerable  for  the  damage  caused  by 
its  fall. 

To  the  same  effect  is  Cork  v.  Blossom,  162  Mass.  330. 

The  instructions  to  the  jury  allowed  them  to  find  a  verdict  for  the 
pkintiff,  not  upon  the  ground  that  the  chimney  was  a  nuisance 
"likely  to  do  mischief,"  but  upon  the  ground  that  the  work  of  repair 
called  for  by  the  contract  was  necessarily  a  nuisance  within  the  rule 
stated  in  Woodman  v.  Metropolitan  Railroad,  ubi  supra,  and  other 
similar  cases. 

The  work  called  for  was  the  repair  of  chimneys.  At  most  the  brick 
were  to  be  taken  off  for  a  few  feet  and  relaid.  The  work  which  was 
to  be  done  was  not  such  as  would  necessarily  endanger  persons  in 
the  street.  It  did  not  involve  throwing  the  brick  into  the  street,  or 
causing  or  allowing  them  to  fall  so  as  to  endanger  persons  traveling 
therein.  It  is  plain  that  unless  there  was  negligence  in  the  actual 
handling  of  the  brick,  there  could  be  no  injury  to  the  passing  traveler. 
The  case  very  much  resembles  Pye  v.  Faxon,  156  Mass.  471.  The 
plaintiff  in  that  case,  being  the  tenant  of  a  house,  sued  the  owner  of 
an  adjoining  lot  for  trespasses  alleged  to  have  been  committed  upon 
the  plaintiff's  estate  by  the  defendant  while  engaged  in  constructing 
a  large  building  on  his  lot.  It  appeared  from  the  testimony  that  the 
wall  next  to  the  plaintiff's  house  was  not  built  on  the  boundary  line, 
but  was  several  inches  from  it,  and  that  the  staging  used  in  building 
it  was  placed  upon  the  inside;  that  the  brick  when  laid  pressed  out  the 
mortar,  which  was  then  scraped  off  by  the  trowels  of  the  masons,  and 
some  of  it  dropped  upon  the  plaintiff's  land,  upon  her  rear  windows, 
and  upon  the  clothes  hanging  in  her  back  yard.  At  the  trial  the  pre- 
siding judge  instructed  the  jury  that  if  the  dropping  of  the  mortar 
was  from  the  carelessness  of  the  workman  the  defendant  was  not 
liable,  but  if  it  was  something  necessarily  involved  in  the  building  of 
the  wall,  then  he  might  be  liable;  and  these  instructions  were  held  to 
be  correct. 

This  is  not  a  case  where  the  work,  even  if  properly  done,  creates  a 
peril,  unless  guarded  against,  as  in  the  cases  relied  upon  by  the  plain- 
tiff.    The  accident  was  caused  by  the  act  of  the  contractor  in  doing 


3-42  DOLL    V.    RIBETTL  [CHAP.  IV. 

what  it  was  not  necessary  for  him  to  do,  what  he  was  not  expected 
to  do,  and  Avhat  he  did  not  intend  to  do.  If  it  had  been  necessary  for 
him  to  topple  the  chimney  over  into  the  street,  or  to  remove  the  bricks 
by  letting  them  fall  into  it,  or  the  contract  had  contemplated  such  ac- 
tion, the  instructions  would  not  have  been  objectionable;  but  as  this 
was  not  necessary  or  intended,  the  work  could  not  be  classed  as  work 
which,  if  properly  done,  was  ordinarily  attended  with  danger  to  the 
public. 

The  negligence,  if  any,  was  in  a  mere  detail  of  the  work.  The  con- 
tract did  not  contemplate  such  negligence,  and  the  negligent  party  is 
the  only  one  to  be  held.  The  case  is  clearly  distinguishable  from 
Woodman  v.  Metropolitan  Railroad,  uhi  supra,  and  others  of  a  like 
character,  and  must  be  classed  with  Conners  v.  Hennessey,  ubi  supra, 
and  others  like  it.^ 


DOLL  V.   RIBETTL 
Circuit  Court  of  Appeals,  1913. 

[Reported  203  Fed.  ,593.] 

Gray,  Circuit  Judge.  The  defendant  in  error  (hereinafter  called 
the  plaintiff)  brought  an  action  of  trespass  in  the  court  below  against 
the  plaintiff  in  error  (hereinafter  called  the  defendant),  to  recover 
damages  for  personal  injuries  received  by  him  while  passing  along 
the  sidewalk  in  front  of  the  building  occupied  by  defendant,  in  the 
city  of  Pittsburgh.    The  statement  of  claim  sets  forth  the  following: 

That  on  the  14th  day  of  February,  1910,  and  prior  thereto,  defend- 
ant was  the  lessee  and  occupant  of  a  certain  building  on  Penn  Avenue, 
one  of  the  principal  streets  in  the  said  city  of  Pittsburgh  and  devoted 
chiefly  to  business  purposes.  The  building  was  six  stories  in  height 
and  stood  flush  with  the  sidewalk  of  Penn  Avenue,  with  windows  of 
the  ordinary  type,  intended  to  be  opened  and  closed  by  sliding  their 
sashes  up  and  down.  Along  the  side  of  the  said  street  next  to  this 
building  was  the  usual  sidewalk,  which,  being  in  a  frequented  part  of 
the  city,  was  in  constant  use  by  pedestrians  at  all  hours  of  the  day. 

That  in  the  said  city  of  Pittsburgh,  it  had  been  a  custom  to  have  the 
windows  of  such  buildings  cleaned  by  persons  standing  outside  of  the 
sash  and  on  the  sills  of  the  windows,  secured  from  falling  by  a  stout 
belt  worn  about  the  waist,  with  a  strap  on  each  side  thereof,  fastened 
to  a  hook  or  other  fixture  set  for  the  purpose  in  the  side  frames  or 

1  The  remainder  of  the  opinion,  in  which  a  (juestion  of  evidence  is  discussed,  is 
omitted. 

See  also  State  v.  General  Stevedoring  Co.,  213  Fed.  51,  70,  72;  Davis  v.  Whit- 
ing, 201  Mass.  92;  Berg  v.  Tarsons,  176  N.  Y.  109;  Sanford  v.  Pawtucket  St.  Ry., 
19  R.  I.  537.  —  P:d. 


SECT.  I.]  DOLL   V.    RIBETTI.  343 

casing  of  each  window.  That  it  was  also  a  custom  for  persons  en- 
gaged in  the  cleaning  of  windows,  whether  for  themselves  or  under 
contract  for  others,  to  provide  their  workmen  so  engaged  with  belts 
and  straps  and  the  appropriate  hooks  or  fixtures,  for  use  in  connection 
therewith,  for  the  obvious  purpose  of  protecting,  as  well  the  persons 
passing  along  the  sidewalk  as  the  cleaners  themselves,  and  that  win- 
dows on  high  buikHngs  were  generally  equipped  by  the  owners  or 
occupiers  thereof  with  such  hooks  or  other  fixtures. 

It  is  then  averred  that  the  building  occupied  by  the  defendant  was 
not  and  never  had  been  provided  with  such  hooks,  or  with  any  other 
fit  or  appropriate  fixtures,  for  the  purpose  stated. 

That  at  sometime  before  said  14th  day  of  February,  1910,  defend- 
ant entered  into  a  contract  with  one  Hearn,  for  cleaning  the  windows 
of  the  said  building  at  stated  intervals.  That  on  that  day,  the  win- 
dows opening  upon  said  avenue  were  being  cleaned  under  said  contract 
by  the  agents  and  servants  of  Hearn.  H.  C.  Burrell,  one  of  said 
agents  or  servants,  while  so  engaged,  was  standing  on  the  outer  sills 
of  the  windows  while  doing  his  work,  without  using  a  safety  belt  or 
other  adequate  safety  appliance,  as  theretofore  referred  to,  to  prevent 
him  from  falling. 

The  defendant,  long  prior  to  said  14th  day  of  February,  1910, 
"knew,  or  by  the  exercise  of  reasonable  care  should  have  known,  that 
the  windows  of  the  building  were  not  equipped  with  the  customary 
hooks  or  other  appropriate  fixtures  hereinbefore  referred  Jo;  and 
knew,  or  by  the  exercise  of  reasonable  care  should  have  known,  that 
some  of  the  windows  giving  upon  Penn  Avenue  were  so  defective 
.  .  .  that  they  could  not  be  cleaned  on  the  outside,  except  by  persons 
standing  on  the  outer  sills  thereof." 

That  on  the  day  last  aforesaid,  while  plaintiff  was  lawfully  walking 
upon  the  sidewalk  on  Penn  Avenue,  and  passing  the  said  building,  the 
said  Burrell,  then  engaged  in  so  cleaning  a  window  on  the  fourth 
story  front  thereof,  above  said  sidewalk,  and  without  the  knowledge 
of  the  plaintiff,  accidentally  lost  his  balance  and  fell  upon  plaintiff, 
thereby  injuring  him,  as  thereinafter  set  forth. 

The  plaintiff  was  a  physician  and  surgeon,  practicing  in  the  city  of 
Pittsburgh,  and  was  severel}'  and  permanently  injured  by  this  acci- 
dent. 

The  facts  alleged  in  the  statement  of  claim  are  for  the  most  part 
undisputed,  and  there  was  ex-idence  tending  to  support  all  of  the 
allegations  of  fact  upon  which  were  based  the  charge  of  negligence  of 
the  defendant.  The  case  was  submitted  to  the  jury,  with  a  charge  by 
the  court,  and  to  the  judgment  upon  the  verdict  in  favor  of  the  plain- 
tiff this  writ  of  error  is  taken. 

The  only  question  raised  by  the  assignments  of  error  (apart  from 
the  one  founded  on  the  refusal  of  the  court  to  direct  a  verdict  for  the 
defendant),  is  as  to  the  legal  responsibility  of  the  defendant,  as  occu- 


344  DOLL   V.    KIBETTI.  [CHAP.  IV. 

pant  of  the  building,  for  such  neglect  or  default  of  an  independent  con- 
tractor undertaking  to  clean  defendant's  windows,  as  made  the  work 
unreasonably  dangerous  to  those  of  the  public  lawfully  using  the  side- 
walk beneath.  It  was  insisted  by  the  defendant  in  the  court  below, 
as  here,  that  the  window  cleaning  contractor,  l)eing  a  man  skilled  and 
experienced  in  that  line  of  work,  had  taken  the  responsibility  for  the 
conduct  thereof  out  of  the  hands  of  the'defendant  into  his  own,  and 
that  he  alone,  and  not  the  defendant,  was  liable  for  any.  negligence  in 
the  conduct  of  that  work. 

In  this  case,  however,  we  agree  with  the  court  below,  that  the  fact 
that  the  work  was  in  the  hands  of  an  independent  contractor  cannot 
be  interposed  as  a  defense  to  the  liability  with  which  the  defendant  is 
sought  to  be  charged. 

The  defendant  was  a  lessee  and  occupier  of  the  building  in  ques-. 
tion.  As  such,  he  was  in  control  thereof,  and  the  law  imposes  upon 
such  occupier  a  very  positive  duty  to  those  using  the  highway  upon 
which  the  building  abuts,  to  use  the  care  requisite,  according  to  the 
circumstances,  to  guard  them  against  injury  resulting  from  the  condi- 
tion of  the  premises,  or  from  what  is  being  done  in  or  about  the  same, 
by  the  direction  or  permission,  or  for  the  convenience  and  benefit,  of 
the  occupier.  In  cases  like  the  present,  the  exigence  of  such  duty  is 
not  affected  by  the  fact  that  the  faulty  conditions,  from  which  re- 
sulted the  damage  complained  of,  were  due  to  the  negligence  of  an 
independent  contractor  in  operating  under  the  contract.  This  duty  is 
peculiar  to  the  situation,  and  is  as  just  as  it  is  severe.  It  places  the 
responsibility  for  what  happens  on  such  premises  on  the  occupier 
who  is  in  control  of  the  same,  and  protects  those  of  the  public  who, 
in  the  use  of  the  highway  along  such  premises,  lawfully  come  within 
dangers  originating  thereon.  Of  such  dangers,  the  casual  user  of  a 
sidewalk  is  generally  unwarned,  and  the  matters  from  which  they 
arise  are  specially  within  the  knowledge,  or  should  be  within  the 
knowledge,  of  the  occupier. 

What  is  said  by  Sir  Frederick  Pollock  in  his  philosophical  work  on 
Torts,  in  relation  to  the  duties  imposed  by  law  on  the  occupiers  of 
buildings,  applies  as  well  to  the  duty  of  such  occupiers  to  those  who 
are  in  lawful  use  of  the  adjacent  highway,  as  to  the  duty  to  those  who 
resort  to  the  premises  in  the  course  of  business  in  which  the  occupier 
is  concerned  or  interested: 

"The  duty  is  founded  not  on  ownersliip  but  on  possession,  in  other 
words,  on  the  structure  being  maintained  under  the  control  and  for 
the  purposes  of  the  person  held  answerable.  It  goes  beyond  the  common 
doctrine  of  responsibility  for  servants,  for  the  occupier  cannot  dis- 
charge himself  by  employing  an  independent  contractor  for  the  main- 
tenance and  repair  of  the  structure,  however  careful  he  may  be  in  the 
choice  of  that  contractor.  Thus  the  duty  is  described  as  being  imper- 
sonal rather  than  personal.    Personal  diligence  on  the  part  of  the  occu- 


SECT.  I.J 


DOLL   V.  laBETTI.  345 


pier  and  his  servants  is  immaterial.  The  structure  has  to  be  in  a  rea- 
sonably safe  condition,  so  far  as  the  exercise  of  reasonable  care  and  skill 
can  make  it  so.  To  that  extent  there  is  a  limited  duty  of  insurance, 
as  one  may  call  it,  though  not  a  strict  duty  of  insurance  such  as  exists 
in  the  classes  of  cases  governed  by  Rylands  v.  Fletcher  [L.  R.  3  H.  L. 
330,  37  L.  J.  Ex.  161]." 

Where  the  thing  committed  to  an  independent  contractor  to  do  for 
the  occupier,  on  or  about  his  premises,  is  of  itself  inherently  danger- 
ous, such  contractor  is  the  mere  instrument  or  agent  of  the  occupier, 
so  far  as  concerns  the  responsibility  to  those  lawfully  coming  within 
such  danger.  In  the  present  case,  the  responsibility  of  the  defendant, 
as  occupier,  is  the  same  as  if  the  window  cleaner,  who  fell  from  the 
window  sill,  had  been  the  ordinary  servant  of  the  defendant.  He 
was  bound  in  either  case  to  use  the  care  requisite  to  see  that  the  work 
of  cleaning  his  windows  was  not  made  unreasonably  dangerous  to  one 
passing  on  the  sidewalk.  This,  in  effect,  is  the  principle  announced 
by  the  Supreme  Court  in  the  case  of  Water  Co.  r.  Ware,  16  Wall.  566, 
21  L.  Ed.  485: 

"  When  a  person  is  engaged  in  a  work,  in  the  ordinary  doing  of  which 
a  nuisance  occurs,  the  person  is  liable  for  any  injury  that  may  result  to 
third  parties  from  carelessness  or  negligence,  though  the  work  may  be 
done  by  a  contractor." 

The  duty  imposed  by  law  on  the  occupier  is  an  absolute  duty,  which 
he  cannot  shift.  It  is  by  reason  of  his  control  thereof,  that  the  occupier 
of  premises  on  a  public  street  or  highway  owes,  as  has  been  said,  a 
duty  of  quasi  insurance  to  those  using  the  highway  against  injury 
resulting  from  the  condition  of  the  premises,  or  from  what  is  being 
done  on  or  about  the  same  for  the  convenience  and  benefit  of  the 
occupier.  So  a  general  contractor  having  possession  and  control, 
for  the  purpose  of  erecting  buildings  for  the  owner  of  the 
premises,  cannot  relieve  himself  from  liability  for  a  dangerous  situ- 
ation, though  created  by  an  independent  subcontractor,  as  recently 
decided  by  this  court  in  the  case  of  Wilson  v.  Hibbert,  194  Fed.  838, 
114  C.  C.  A.  542. 

There  is  little  or  no  difference  in  English  or  American  authorities 
on  this  point,  and  it  is  unnecessary  to  cite  the  long  list  of  such  au- 
thorities which  have  been  brought  to  our  attention  by  the  ability  and 
industry  of  the  learned  counsel  of  the  defendant  in  error.  This  prin- 
ciple was  given  a  wider  application  by  the  Supreme  Court  in  the  case 
of  Chicago  v.  Robbins,  2  Black,  418,  17  L.  Ed.  298.  In  that  case, 
the  defendant,  owning  a  lot  in  Chicago,  contracted  in  writing  with 
another  to  erect  a  building  thereon,  which  included  the  excavation  of 
an  area  in  the  sidewalk  next  to  and  adjoining  it,  so  as  to  furnish  light 
and  air  to  the  basement.  After  the  excavation  had  been  made,  it  was 
left  unguarded  by  the  contractor,  and  the  plaintiff  was  injured  by 
falling  therein.    On  the  ground  that  the  contractor  was  doing  the  thing 


34G  DOLL   V.  RIBETTI.  [CHAP.  IV. 

which  he  was  employed  to  do,  which  was  inherently  dangerous  to  the 
users  of  the  sidewalk,  the  court  held  the  owner  who  had  employed  the 
contractor  liable  for  the  injury  occasioned  by  the  neglect  to  surround 
the  excavation  with  sufficient  lights  and  guards.  Speaking  of  the 
owner  and  employer,  the  court  said: 

"  He  cannot  escape  liability  by  letting  work  out  like  this  to  a  con- 
tractor and  shift  responsibility  on  him  if  an  accident  occurs.  He  can- 
not even  refrain  from  directing  his  contractor  in  the  execution  of  the 
work,  so  as  to  avoid  making  the  nuisance.  A  hole  cannot  be  dug  in 
the  sidewalk  of  a  large  city  and  left  without  guards  and  light  at 
night,  without  great  danger  to  life  and  limb,  and  he  who  orders 
it  dug,  and  makes  no  provision  for  its  safety,  is  chargeable,  if  injury 
is  suffered." 

This  wider  and  more  inclusive  rule  is  variously  stated  in  a  multi- 
tude of  cases,  both  English  and  American,  and  is  very  clearly 
stated  by  the  Supreme  Court  of  Ohio  in  Co^^ngton  &  Cincinnati 
Bridge  Co.  v.  Steinbrock,  61  Ohio  St.  223,  55  N.  E.  619,  76  Am.  St. 
Rep.  375: 

"The  weight  of  reason  and  authority  is  to  the  effect  that  where  a 
party  is  under  a  duty  to  the  public  or  third  person  to  see  that  work 
he  is  about  to  do  or  have  done  is  carefully  performed,  so  as  to  avoid 
injury  to  others,  he  cannot,  by  letting  it  to  a  contractor,  avoid  his 
lial)ility  in  case  it  is  negligently  done  to  the  injury  of  another.  .  .  . 
It  is  the  danger  to  others,  incident  to  the  performance  of  the  work  let 
to  contract,  that  raises  the  duty  and  which  the  employer  cannot  shift 
from  himself  to  another  so  as  to  avoid  liability,  should  injury  result  to 
another  from  negligence  in  doing  the  work." 

In  such  cases,  the  principal  makes  the  contractor  an  agent  or  serv- 
ant, for  whose  negligence  he  is  responsible.  So  in  the  English  case 
of  Bower  v.  Peate,  1  Q.  B.  Div.  321.  Here  the  plaintiff  and  defendant 
occupied  adjoining  houses.  Defendant,  having  decided  to  rebuild  his 
house  and  in  doing  so  to  carry  his  foundations  lower  than  the  founda- 
tions of  the  plaintiff's  adjoining  house,  entered  into  a  contract  with 
a  builder  to  do  all  the  necessary  work.  The  written  contract  contained 
a  clause  by  which  the  contractor  agreed  to  take  upon  himself  the  risk 
and  responsibility  of  shoring  and  supporting,  as  far  as  necessary,  the 
adjoining  building  affected  by  this  alteration,  during  the  progress  of 
the  work.  Cockburn,  C.  J.,  dehvering  the  opinion  of  the  Queen's 
Bench  Division  of  the  High  Court  of  Justice,  says : 

"The  answer  to  defendant's  contention  may,  however,  as  it  appears 
to  us,  be  placed  on  a  broader  ground,  namely,  that  a  man  who  orders 
work  to  be  executed,  from  which,  in  the  natural  course  of  things,  in- 
jurious consequences  to  his  neighbor  must  be  expected  to  arise,  unless 
means  are  adopted  by  which  such  consequences  may  be  prevented,  is 
bound  to  see  to  the  doing  of  that  which  is  necessary  to  prevent  the  mis- 
chief, and  cannot  relieve  himself  of  his  responsibility  by  employing 


I 


SECT.  I.]  DOLL    V.  EIBETTL  347 

some  one  else  —  whether  it  be  the  contractor  employed  to  do  the  work, 
from  which  the  danger  arises,  or  some  independent  person  —  to  do 
what  is  necessary  to  prevent  the  act  he  has  ordered  to  be  done  from 
becoming  wrongful." 

See,  also.  Tarry  v.  xA.shton,  1  Q.  B.  Div.  314. 

If  the  work  to  be  done  by  the  contractor  for  the  occupier  is  neces- 
sarily attended  with  some  danger,  even  when  performed  without 
negligence  by  the  contractor,  such  occupier  would  be  responsible  for 
having  neglected  to  guard  against  such  inevitable  danger  should  an  in- 
nocent third  person  suffer  injury  therefrom.  Thus,  in  the  case  of  Jager 
V.  Adams,  123  Mass.  26,  25  Am.  Rep.  7,  where  one  was  building  a 
brick  wall  abutting  on  the  highway,  and  plaintiff  was  injured  by  a 
falling  brick,  though  the  servant  who  dropped  it  was  not  negligent,  the 
court  said: 

"  It  is  a  matter  of  common  knowledge  and  experience  that  when 
men  are  breaking  and  handling  bricks  in  the  construction  of  such  a 
wall,  some  of  the  material  may  fall,  although  the'  workmen  are  in  the 
exercise  of  ordinary  care.  The  immediate  cause  of  the  evil  in  such  case 
may  indeed  be  accidental,  but  it  is  an  accident  which  the  builder  of 
the  wall,  in  \new  of  the  danger  to  life  and  limb,  may  be  bound  to  con- 
template and  provide  against  by  safeguards  or  barriers,  so  that  the 
traveler  may  not  be  exposed  to  injury." 

See,  also,  Shipley  v.  Fifty  Associates,  101  Mass.  251,  3  Am.  Rep. 
346. 

We  have  not  overlooked  the  fact  that  the  falling  body  by  which 
the  plaintiff  was  injured  was  a  living  man,  capable  of  exercising  his 
own  will  and  capable,  therefore,  of  causing  or  contributing  to  his  fall 
by  his  own  negligence.  But  we  have  not  been  able  to  discover  in  these 
facts  a  sufficient  reason  for  relieving  the  occupier  of  the  premises  from 
liabilit}^  As  we  have  tried  to  show,  the  man  whose  fall  did  the  harm 
in  question  must  be  regarded  as  the  servant  of  the  occupier,  although 
an  independent  contractor  did  intervene,  and  the  occupier  cannot  es- 
cape liability  for  the  negligence  of  his  servant  and  agent,  even  under 
such  unusual  circumstances  as  these.  On  principle,  the  servant's  con- 
trol over  his  own  will  and  his  own  movements  does  not  seem  to  make 
any  difference.  The  occupier  was  the  master,  and  if  in  that  charac- 
ter he  had  ordered  the  servant  to  assume  the  cUingerous  position,  and 
the  fall  had  taken  place  while  the  servant  was  obeying  the  order,  the 
master  would  have  been  as  completely  liable  as  if  the  falling  body  had 
been  an  inanimate  object  carelessly  placed  on  the  window  ledge. 
And  we  think  tlie  same  result  must  follow,  although  the  master  know- 
ingly permits  (but  does  not  directly  order)  his  serAant  to  assume  a 
position  so  dangerous  that  the  servant's  lack  of  care  for  his  own  safety 
may  be  followed  by  injur\-  to  an  innocent  passer-by.  This  is  little 
more  than  a  restatement  of  the  proposition,  that  he  who,  either  him- 
self or  by  an  agent,  does  an  act  inherently  dangerous  to  the  innocent 


348  .  DOLL   V.    RIBETTI.  [CHAP.  IV. 

users  of  a  highway  —  whether  the  order  be  given  directly  or  through 
the  mouth  of  an  independent  contractor  —  is  charged  with  a  high  de- 
gree of  responsibihty,  nearly  akin  to  the  responsibility  of  an  insurer. 

The  court,  having  correctly  instructed  the  jury  that  the  employ- 
ment by  defendant  of  an  independent  contractor  to  clean  the  windows 
of  his  building  was  not  available  as  a  defense,  it  only  remained  to 
submit  to  the  jury,  not  whether  this  work  was  dangerous,  but  whether 
defendant  had  used  reasonable  care  in  guarding  against  the  dangers 
that  were  naturally  incident  thereto.  It  is  a  matter  of  common 
knowledge  that  work  done  on  the  outside  of  a  building,  such  as  in 
this  case,  or  in  the  case  of  work  done  on  scaffolding,  is  attended  with 
dangers  to  those  using  the  sidewalk  beneath.  Such  accidents,  whether 
negligent  or  non-negligent,  must  be  guarded  against,  either  by  means 
calculated  to  prevent  the  falling  of  bodies,  or  by  such  barriers  or  warn- 
ing notices  as  would  prevent  the  use  of  the  sidewalk  within  the  area 
of  danger,  the  only  question  to  be  determined  being  whether  defendant 
has  used  reasonable  care  to  safeguard  the  situation. 

The  charge  of  the  court  below  was  in  another  respect  more  favor- 
able to  the  defendant  than  it  had  a  right  to  demand.  The  jury  were 
repeatedly  instructed  that  the  burden  rested  upon  the  plaintiff  to  show, 
first,  that  this  work  was  dangerous  work,  and  second,  that  the  defend- 
ant was  guilty  of  negligence  in  not  acting  as  a  person  of  ordinary 
prudence  should  act,  in  order  to  guard  against  its  dangers.  The  rule 
of  evidence  applicable  in  such  cases  is  thus  stated  by  Sir  Frederick 
Pollock: 

"Where  damage  is  done  by  the  falling  of  objects  into  a  highway  from 
a  building,  the  modern  rule  is  that  the  accident,  in  the  absence  of  ex- 
planation, is  of  itself  evidence  of  negligence.  In  other  words,  the  bur- 
den of  proof  is  on  the  occupier  of  the  building.  If  he  cannot  show  that 
the  accident  was  due  to  some  cause  consistent  with  the  due  repair  and 
careful  management  of  the  structure,  he  is  liable." 

In  other  words,  the  maxim  res  ipsa  loquitur  is  apphcable  to  cases  like 
the  present.  This  rule  rests  upon  both  reason  and  authority.  It 
is  the  dictate  of  a  wise  public  policy,  that  of  protecting  the  right  of 
those  lawfully  using  the  public  highways,  to  be  unmenaced  by  dangers 
resulting  from  the  condition  of  adjoining  premises,  or  from  what  is 
being  done  for,  or  by  permission  of,  the  occupiers,  on  or  about  the 
same.  These  things,  though  known  to  such  occupiers,  cannot  be  known 
or  appreciated  by  the  users  of  the  highways.  Bodies  are  not  expected 
to  fall  from  the  windows  of  buildings,  upon  the  adjoining  highways. 
Such  happenings  are  not  consistent  with  the  usual  and  orderly  con- 
duct and  menage  of  such  buildings. 

The  leading  cases  of  Byrne  v.  Boadle,  2  H.  &  C.  722,  and  of 
Kearney  r.  London,  Brighton  &  South  Coast  Railway  Co.,  6  Q.  B. 
Cas.  759,  have  been  followed  by  many  other  cases,  both  in  England 
and  in  this  country,  and  the  applicability  of  the  rule  of  evidence  em- 


SECT.  II.]  LYONS    V.  MERRICK.  349 

bodied  in  the  maxim  res  ipsa  loquitur,  to  objects  falling  from  buildings 
into  a  highway,  is  well  established. 

The  jury,  however,  having  found  both  the  questions  thus  submitted 
in  favor  of  the  plaintiff,  the  assignments  of  error,  as  to  the  charge  of 
the  court  in  regard  to  the  defense  of  an  independent  contractor,  are 
overruled,  and  the  judgment  below  is  hereby  affirmed.^ 


SECTION   II. 

Liabilitij  for  Animals. 

LYONS  V.   MERRICK. 
Supreme  Judicial  Court  of  Massachusetts,  1870. 

[Reported  105  Mass.  71.] 

At  the  trial  in  the  Superior  Court,  before  Devens,  J.,  the  plaintiff 
offered  evidence  tending  to  show  that  the  defendant's  mule,  and  the 
horse  of  Fuller,  which  the  defendant  was  pasturing  for  hire,  came 
into  the  plaintiff's  pasture  and  there  so  chased,  kicked,  and  injured  the 
plaintiff's  mare  that  she  died;  that  the  mule  was  accustomed,  before 
the  time  of  this  injury,  to  jump  and  escape  from  the  lots  of  the  defend- 
ant; that  the  defendant  knew  of  this  habit  of  the  mule;  and  that  the 
lot  where  the  defendant  placed  the  mule  and  horse  was  insufficiently 
and  negligently  fenced. 

It  appeared  that  the  lot  of  the  defendant,  from  which  the  mule  and 
horse  escaped,  was  situated  about  half  a  mile  from  the  plaintiff's  pas- 
ture ;  that  next  to  the  defendant's  lot  was  the  lot  of  Peter  Glover,  next 
to  Glover's  lot  was  a  lot  of  Simon  Bloomer,  and  next  to  Bloomer's  lot 
was  the  pasture  of  the  plaintiff. 

The  defendant  offered  evidence  tending  to  show  that  "  the  partition 
fence  between  his  lot  and  Glover's  had  not  been  legally  divided,  but 
that  for  the  purpose  of  repairs  one  portion  had  always  been  repaired 
by  himself  and  those  under  whom  he  claimed,  and  the  other  by 
Glover  and  those  under  whom  he  claimed;  that  the  animals  escaped 
through  that  portion  of  the  fence  which  Glover  was  accustomed  to 
keep  in  repair,  and  that  it  was  not  a  lawful  fence ;  that  between  Glover's 
lot  and  Bloomel"'s  lot  there  was  no  fence  at  all,  and  between  Bloomer's 
lot  and  the  plaintiff's  pasture  was  not  a  lawful  fence;  and  that  after 
the  animals  escaped  into    Glover's   lot,  they    then   passed    through 

'  See,  also,  Chicago  v.  Robbins,  2  Black,  418;  Water  Co.  v.  Ware,  Hi  Wall,  567, 
576;  Wetherbee  v.  Partridge,  175  Mass.  185;  Storrs  v.  Utica,  17  N.  Y.  104;  Bower  v. 
Peate,  1  Q.  B.  D.  321.  — Ed. 


350  LYONS    V.    MERRICK.  [CHAP.  IV. 

Bloomer's  lot  and  over  the  insufficient  fence  next  the  plaintiff's  pasture 
into  the  pasture."  ^ 

Colt,  J.  The  declaration  charges  the  defendant  with  negligence  in 
turning  his  mule,  and  a  horse  which  he  was  keeping  for  hire,  into  a 
pasture  insufficiently  fenced.  The  instructions  given  at  the  trial,  as  to 
what  would  be  negligence  in  this  regard,  were  full  and  accurate.  The 
defendant  cannot  avoid  the  liability  by  showing  that  the  obligation 
to  maintain  that  part  of  the  fence  through  which  the  animals  escaped 
was  upon  a  third  party,  who  owned  the  adjoining  land  over  which  the 
animals  passed  on  their  way  to  the  plaintiff's  pasture.  The  rights  and 
obligations  existing  between  adjoining  owners  in  respect  to  fencing, 
whether  regulated  by  statute,  or  by  agreement,  do  not  affect  the  right 
to  recover  in  this  case.  At  common  law,  the  tenant  must  keep  his 
cattle  upon  his  own  land  at  his  peril.  The  defendant,  as  against  the 
plaintiff,  is  subject  to  this  common  law  duty,  the  parties  are  not  ad- 
joining owners,  and  their  obligations  are  not  affected  by  statute  in  this 
respect.  It  was  negligence  to  turn  the  animals  into  a  lot  insecurely 
fenced,  for  which  the  defendant  is  responsible  if  any  injury  ensued, 
without  regard  to  the  obligations  existing  between  the  defendant  and 
the  tenant  of  the  next  lot.  It  may  be  that  the  defendant  would  not  be 
liable  in  trespass  for  their  escape  into  that  lot,  if  the  tenant  of  it  was  in 
fault,  for  no  one  can  recover  for  an  injury  to  which  his  own  negligence 
contributed.  And  yet  as  to  the  plaintiff,  the  animals  while  in  that 
lot  were  unlawfully  there,  and  no  obligation  rested  upon  him  to 
fence  his  lot  against  them.  It  was  therefore  immaterial  what  the 
condition  of  the  fence  aroimd  the  plaintiff's  pasture  was.  Rust  v. 
Low,  6  Mass.  90.  Eames  v.  Salem  &  Lowell  Railroad  Co.,  98  Mass. 
560.  The  instructions  asked  for  on  this  part  of  the  case  could  not  be 
properly  given. 

The  other  instructions  asked  were  also  properly  refused.  The  owner 
of  an  animal,  or  the  person  who  in  his  place  and  by  contract  with  him 
has  the  exclusive  custody  and  control  of  it,  is  liable  for  injuries  which 
he  negligently  suffers  it  to  commit.  The  liability  stands  wholly  upon 
the  ground  of  actual  or  presumed  negligence.  If  the  injury'  is  commit- 
ted while  trespassing  upon  the  lands  of  others,  the  owner  is  charge- 
able, and  is  responsible  for  the  damage  which  directly  results  there- 
from as  the  natural  and  probable  consequence.  In  other  cases  he 
may  be  liable,  although  there  is  no  trespass,  and  the  animal  is  rightfully 
in  the  place  where  the  mischief  is  done;  as  where  the  injury  comes  from 
the  vicious  disposition  or  mischievous  habits  of  the  animal,  of  which 
the  owner  had  previous  actual  notice;  or  where,  without  actual  notice, 
the  disposition  and  habits  are  so  universal  among  the  species  that 
notice  is  presumed,  as  in  the  case  of  wild  and  savage  beasts.  The 
owner  or  keeper  of  such  animals,  with  actual  or  implied  notice  of  their 
character,  is  bound  at  his  peril  to  keep  them,  at  all  times  and  in  all 

^  Pleadings,  requests  to  charge,  and  arguments  are  omitted.  —  Ed. 


sp:ct.  il]  vredenburg  v.  behan,  351 

places,  properly  secured;  and  is  responsil)le  to  any  one  who  without 
fault  on  his  own  part  is  injured  by  them. 

The  rulings  which  were  asked  on  this  point  proceed  upon  the  ground 
that  the  defendant  could  not  be  held  liable,  and  the  action  could  not 
be  maintained  at  all,  without  proof  of  knowledge  on  his  part  that  these 
animals  were  vicious  and  accustomed  to  do  mischief.  But,  on  the 
part  of  the  defendant,  there  was  negligence  enough  to  support  the 
action,  in  placing  the  animals  where  they  would  be  likely  to  escape 
and  become  trespassers  upon  the  plaintiff;  and  upon  the  question  of 
the  right  to  maintain  the  action  the  defendant's  knowledge  or  want  of 
knowledge  of  their  character  was  immaterial.  We  are  not  required  to 
consider  what  effect,  if  any,  it  would  have  upon  the  amount  of  the 
damages  for  which  he  would  be  liable. 

The  form  of  the  plaintiff's  declaration  does  not  require  him  to  prove 
the  alleged  viciousness  and  the  defendant's  knowledge,  because  with- 
out these  allegations  there  is  enough  stated  to  charge  the  defendant 
with  negligence,  and  the  plaintiff  was  bound  to  prove  no  more  than  was 
necessary  to  make  out  his  case.  This  is  the  rule  in  actions  of  tort, 
where  the  plaintiff  is  not  obliged  to  prove  allegations  not  essentially 
descriptive  or  so  connected  with  material  averments  that  they  cannot 
be  separated.  McDonald  v.  Snelling,  14  Allen,  290.  Barnes  v.  Chapin, 
4  Allen,  444.  Decker  v.  Gammon,  44  ]\laine,  322.  Shearman  &  Red- 
field  on  Negligence,  §  185. 

As  to  the  defendant's  liability  for  the  damage  done  by  the  horse 
which  he  was  keeping  for  hire,  the  rule  laid  down  at  the  trial  was 
certainly  sufficiently  favorable  to  him.  Barnum  v.  Vandusen,  16 
Coim.  200. 

Exceptions  overruled. 


VREDENBURG  v.   BEHAN. 
Supreme  Court  of  Louisiana,  1881. 

[Reported  33  La.  Ann.  627.] 

Todd,  J.^  .  .  . 

1.  The  facts  out  of  which  this  controversy  grew  are,  substantially, 
as  follows: 

The  defendants  were  members  of  an  association  or  society  known  as 
the  Crescent  City  Rifle  Club. 

In  July,  1877,  the  club,  wishing  to  send  some  of  its  members  north 
to  participate  in  an  inter-State  rifle  shooting  match,  about  to  take 
place  in  New  York,  for  the  purpose  of  providing  means  therefor,  con- 
cluded to  give  an  entertainment  at  Milneburg,  on  Lake  Pontchartrain. 
The  Continental  Guards,a  military  company  of  the  city  of  New  Orleans, 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


352  VREDENBURG   V.    BEHAN.  [CHAP.  IV. 

to  further  the  object  in  view,  and  as  a  contribution  to  the  proposed  en- 
tertainment, offered  to  the  Club  a  bear,  owned  by  the  officers  of  the 
company,  "as  a  prize  to  be  shot  for"  on  the  occasion.  The  offer  was 
accepted,  and  a  member  of  the  club  was  instructed  to  make  the  neces- 
sary arrangements  for  shooting  for  the  bear. 

The  entertainment  came  off  on  the  3d  of  August,  1877,  the  bear 
was  brought  on  the  ground  and  was  offered  as  a  prize,  as  pre\aously 
arranged.  He  was  won  by  William  Arms,  a  member  of  the  club,  and 
one  of  the  defendants.  Arms  put  him  up  again  to  be  shot  for,  and  this 
time  he  was  won  by  another  person,  who,  however,  declined  to  claim 
the  prize.  Arms  had  the  bear  taken  to  the  grounds  of  the  club,  and 
caused  him  to  be  chained  to  the  corner  of  the  club-house;  and  there 
the  bear  remained  until  the  30th  of  October,  1877.  These  grounds 
had  been  leased  by  the  club,  and  the  house  erected  by  it  belonged,  by 
the  terms  of  their  charter,  to  the  members  of  the  club. 

The  pasture  of  Mr.  Vredenburg,  who  was  engaged  in  a  dairy  busi- 
ness, adjoined  the  grounds  of  the  rifle  club,  and  he  and  his  employees 
in  going  to  and  from  the  pasture  passed  through  these  club  grounds. 
On  the  evening  of  the  30th  of  October,  Mr.  Vredenburg  went  to  the 
pasture  after  his  cows.  A  short  time  thereafter,  as  he  was  returning 
from  the  pasture,  he  was  attacked  by  the  bear,  which  in  the  meantime 
had  gotten  loose,  and  received  the  injuries  of  which  he  subsequently 
died.  Tetanus  or  locked-jaw  supervened,  attended  with  great  suffering, 
and  his  death  occurred  on  the  27th  November,  twenty-one  days  after 
the  wounds  were  inflicted.  It  is  shown  that  just  after  Mr.  Vredenburg 
passed  through  the  club  grounds  on  his  way  to  the  pasture,  a  boy, 
who  was  employed  by  him  to  assist  in  driving  his  cattle,  and  in  his 
dairy  business  generally,  came  into  the  club  grounds  accompanied  by 
a  small  dog,  and  teased  the  bear  by  setting  the  dog  on  him;  and  it 
was  whilst  the  animal  was  thus  worried,  that  he  twisted  his  collar  off, 
and  ran  after  the  dog  and  finally  encountered  Mr.  Vredenburg;  and 
just  as  he  attacked  him  he  was  whipped  by  his  keeper  in  an  effort  to 
prevent  the  attack,  which  only  served  to  enrage  him  the  more. 

This  last-mentioned  fact,  touching  the  acts  of  the  hired  boy  in  caus- 
ing the  bear  to  break  loose,  is  charged  to  have  remotely  caused  or  con- 
tributed to  the  death  of  the  deceased,  and  is  relied  on  by  the  defendants 
as  a  ground  to  relieve  them  of  responsibility  for  the  result;  and  though 
not  strictly  in  the  order  of  pleading  adopted  by  their  counsel,  it  is  well 
to  consider  it  at  once,  and  eliminate  it  from  the  case. 

2.  The  doctrine  of  contributory  negligence  has  never  been  carried 
to  the  extent  contended  for  in  this  instance.  Had  the  acts  referred  to 
been  committed  by  Vredenburg  himself,  there  would  be  great  force  in 
the  plea  urged;  and  the  principle  invoked  would  be  strictly  applicable. 
It  is  for  his  own  acts,  however,  in  this  respect,  that  a  man  is  bound  and 
for  which  he  must  suffer;  but  he  cannot  be  held  equally  answerable  for 
the  acts,  faults,  and  negligence  of  his  employee. 


SECT.  II.]  VREDENBURG    V.    BEHAN.  353 

The  master  or  employer  is  only  answerable  for  the  faults  of  his  em- 
ployee when  committed  "  in  the  exercise  of  the  functions  of  his  em- 
ployment, and  when  he  might  have  prevented  the  act  and  not  done  it." 
C.  C.  2320. 

In  this  instance,  the  boy's  act  was  not  in  the  remotest  degree  con- 
nected with  his  employment;  his  employer  was  not  present,  was  not 
knowing  or  consenting  to  it;  and  it  was  not  in  his  power  to  prevent  it. 

Besides,  the  responsibility  attaching  to  those  who  own,  control,  or 
keep  animals  feroB  naturoe,  to  which  class  a  bear  belongs,  is  of  that 
strict  and  grave  character  as  not  to  be  relieved  or  modified  by  con- 
siderations of  the  kind  presented,  nor  to  be  measured  by  rules  that 
apply  to  owners  or  keepers  of  domestic  animals. 

Animals  of  this  kind,  such  as  lions,  tigers,  bears,  are  universally 
recognized  as  dangerous.  It  is  the  duty  of  those  who  own  or  keep 
them,  to  keep  them  in  such  a  manner  as  to  prevent  them  from  doing 
harm,  under  any  circumstances,  whether  provoked,  as  they  are  liable 
to  be,  or  not  provoked.  There  must  be  security  against  them  under 
all  contingencies.  Domat,  p.  475;  Merlin,  Repertoire,  tome  26,  p. 
242,  verbo  Quasi-Delit;  Marcade,  tome  5,  pp.  272,  273;  1  Law  Repts., 
p.  263;  3  Law  Repts.,  p.  330. 

Nor  does  it  matter  that  an  animal  of  this  kind  may  be  to  some 
extent  tame  and  domesticated;  the  natural  wildness  and  ferocity  of 
his  nature  but  sleeps,  and  is  liable  to  be  awakened  at  any  moment,  sud- 
denly and  unexpectedly,  under  some  provocation,  as  was  the  case  in 
this  instance. 

If  the  defendants  are  otherwise  liable  for  the  acts  of  the  bear,  the 
acts  of  the  boy  in  provoking  him  cannot,  for  these  reasons,  affect  in  the 
least  that  liability.  .  .  . 

4.  A  great  deal  of  testimony  was  taken  that  had  little  or  no  bear- 
ing upon  the  real  issues  involved  in  the  case,  and  many  bills  of  exception 
appear  in  the  record  embodying  the  objections  to  its  admission.  These 
objections  went  mainly  to  the  effect  of  the  evidence,  as  held  by  the 
judge  a  quo,  though  much  of  it  was  wholly  irrelevant. 

The  conclusion  we  ha^'e  come  to  touching  the  merits  of  the  case, 
and  the  disposition  we  shall  make  of  it,  render  it  unnecessary  that  we 
should  pass  upon  these  various  bills.  The  salient  facts  of  the  case,  and 
upon  which  our  conclusions  mainly  rest,  summarized  from  the  state- 
ment heretofore  given,  are  these: 

That  the  bear  was  accepted  l)y  the  rifle  club  as  a  prize  to  be  shot  for 
under  the  auspices  of  the  club,  and  to  raise  a  fund  for  the  purposes  of 
the  club;  that  it  was  shot  for,  and  subsequently  carried  to  the  club 
grounds  by  the  direction  of  a  member  of  the  club  and  one  of  the  de- 
fendants ;  that  it  was  kept  there  and  fed  there  for  nearly  three  months 
by  an  employee  of  the  club,  and  the  expenses  for  its  keeping  and  feeding 
paid  for  by  the  treasurer  of  the  club,  and  an  account  of  such  expenses 
submitted  to  the  governing  committee  of  the  club,  of  which  some  of 


354  VREDENBUKG   V.   BEHAN.  [CHAP.  IV. 

the  defendants  were  members;  that  it  was  seen  from  time  to  time  at 
the  club  house  by  members  of  the  club  and  by  all  of  the  defendants 
save  one;  that  no  one  objected  to  his  being  there;  that  whilst  thus  kept 
on  the  club  grounds  in  charge  of  a  keeper,  he  broke  loose,  attacked 
and  wounded  Mr.  Vredenburg,  who  died  of  the  wounds  inflicted. 

The  Code  declares,  "  that  every  act  whatever  of  man  that  causes 
damage  to  another  obliges  him  by  whose  fault  it  happened  to  repair 
it." 

That  a  person  is  responsible  for  the  damage  resulting  from  "his 
negligence  or  imprudence."  That  he  is  answerable,  not  only  for  his 
own  acts,  but  for  the  acts  of  persons  for  whom  he  is  responsible,  and  of 
things  in  his  custody.    C.  C.  2315,  2316,  2317,  2321. 

The  law  upon  this  subject  is  to  the  same  effect  under  every  enlight- 
ened system  of  jurisprudence. 

Thus  a  distinguished  writer  on  this  subject  has  said: 

"The  mere  keeping  of  an  animal  of  a  fierce  nature,  such  as  a  tiger 
or  bear,  or  dog  known  to  be  wont  to  bite,  is  unlawful,  and  therefore,  if 
any  person  is  bitten  or  injured  by  such  an  animal,  an  action  is  main- 
tainable against  the  person  who  keeps  it."  Addison  on  Torts,  pp.  22, 
230. 

And  again: 

"  The  owner  of  wild  and  savage  beasts,  such  as  lions,  tigers,  wolves, 
bears,  etc.,  if  he  neglects  to  keep  them  properly  secured,  is  liable  for 
injuries  committed  by  them  according  to  their  nature,  without  any 
evidence  that  he  knew  them  to  be  ferocious,  or  that  he  was  negligent 
in  the  mode  of  keeping  them,  since  he  is  bound  in  ordinary  prudence 
to  know  that  fact  and  to  secure  them  from  doing  harm."  Shearman 
and  Redfield  on  Negligence,  §  188. 

"One  who  harbors  a  dangerous  animal  on  his  premises,  though 
not  his  owner  in  any  sense,  is  nevertheless  responsible  for  in- 
juries committed  by  it  while  on  or  near  his  premises,  to  the  same 
extent  as  if  he  owned  it."  Shearman  and  Redfield  on  Negligence, 
pp.  227,  228. 

Mr.  Justice  Blackburn,  of  the  English  Court  of  Exchequer,  thus 
lays  down  the  rule  on  this  subject: 

"  We  think  the  true  rule  of  law  is,  that  the  person,  who  for  his  own 
use  or  pleasure  brings  on  his  land,  and  collects  and  keeps  there  any- 
thing likely  to  do  mischief,  if  it  escapes,  must  keep  it  at  his  peril,  and 
if  he  does  not  do  so  is  prima  facie  answerable  for  all  the  damage,  which 
is  the  natural  consequence  of  its  escape.  .  .  .  This  is,  we  think, 
established  to  be  the  law,  whether  the  things  so  brought  be  beasts,  or 
water,  or  filth,  or  stenches." 

Fletcher  v.  Rylands,  Court  of  Exchequer,  1  Law  Repts.,  263;  see, 
also,  Hale's  Pleas  of  the  Crown,  vol.  1,  430;  May  v.  Bourdetts,  9th 
Adolphus  &  Ellis  (3  Q.  B.)  n.  s.  101;  Earl  v.  Van  Alstein,  8  Barbour, 
X.  Y.  630;  41  Cal.  138. 


SECT.  II.]     FILBURN    V.   ri:0'PLE'S    PALACE    &    AQUARIUM    CO.,    LTD.     355 

These  principles  thus  enunciated  are  sound  and  have  our  full  ap- 
proval. 

There  is  a  recognition  of  their  spirit  in  an  ordinance  of  the  city  of 
New  Orleans  on  the  subject,  which  declares: 

"  No  wild  or  ferocious  animals  shall  be  kept  within  the  limits  of  the 
city,  on  the  premises  of  individuals,  or  in  menageries,  unless  such 
animals  be  under  the  charge  of  an  armed  guard  day  and  night." 

Leovy's  City  Laws  and  Ordinances,  Art.  703.  "  ' 

And  it  is  to  be  noted  that  this  bear  was  kept  on  the  club  grounds, 
within  the  city  limits,  in  open  disregard  of  this  ordinance. 

The  fundamental  principle  on  which  the  liability  of  the  defendants 
rests,  is  concisely  expressed  in  the  following  legal  maxim,  that  is  as 
old  as  the  law  itself  and  recognized  in  every  known  system  of  juris- 
prudence: Sic  utere  tuo  ut  alienum  non  laedas. 

Proprietors  or  co-proprietors  of  lands  or  houses  must  not  permit 
their  property  to  l>e  put  to  such  uses  as  to  cause  injury  to  others, 
whether  by  being  made  a  refuge  for  noxious  animals  or  a  magazine 
for  gun  powder,  dynamite,  or  other  explosive  substances,  or  as  a  gen- 
erator of  foul  and  pestilential  vapors  destructive  of  health.  And  there 
was  a  tacit,  though  clear  recognition  of  this  principle  by  the  defendants 
themselves,  or  some  of  them,  in  calling  a  meeting  after  Mr.  Vreden- 
burg's  death  to  raise  contributions  for  the  relief  of  his  family.  No 
liability  was  openly  avowed  or  intended  to  be  acknowledged  on  ac- 
count of  this  sad  affair  by  such  action,  but  there  was  a  latent  sense  of 
responsibility  evidently  felt,  which  found  expression  in  the  language  of 
one  of  the  defendants,  when  testifying  as  a  witness  on  the  trial  of  the 
case,  and  who  said  by  way  of  explaining  the  motive  that  prompted  the 
proposed  assistance,  "  that  it  was  on  account  of  the  accident  occurring 
on  the  grounds  of  the  club." 


FILBURN   V.   PEOPLE'S   PALACE    &   AQUARIUM   CO.,  LTD. 

Court  of  Appeal,  1890. 

[Rcportrd  25  Q.  B.  D.  258.] 

Appeal  from  a  judgment  of  Day,  J. 

The  action  was  brought  to  recover  damages  for  injuries  sustained 
by  the  plaintiff  by  his  being  attacked  by  an  elephant,  which  was  the 
property  of  the  defendants,  and  was  being  exliibited  by  them.  The 
learned  judge  left  three  questions  to  the  jury :  whether  the  elephant  was 
an  animal  dangerous  to  man;  whether  the  defendant  knew  the  elephant 
to  be  dangerous;  and  whether  the  plaintiff"  brought  the  attack  on 
himself.  The  jury  answered  all  three  questions  in  the  negative.  The 
learned  judge  entered  judgment  for  the  plaintiff"  for  a  sum  agreed  upon 
in  case  the  plaintiff'  should  be  entitled  to  recover. 


356     FILBURN  V.  people's    PALACE   &  AQUARIUM   CO.,  LTD,     [CHAP.  IV, 

The  defendants  appealed. 

Lord  Esher,  M.  R.  The  only  difficulty  I  feel  in  the  decision  of  this 
case  is  whether  it  is  possible  to  enunciate  any  formula  under  which 
this  and  similar  cases  may  be  classified.  The  law  of  England  recog- 
nizes two  distinct  classes  of  animals ;  and  as  to  one  of  those  classes,  it 
cannot  be  doubted  that  a  person  who  keeps  an  animal  belonging  to 
that  class  must  prevent  it  from  doing  injury,  and  it  is  immaterial 
whether  he  knows  it  to  be  dangerous  or  not.  As  to  another  class,  the 
law  assumes  that  animals  belonging  to  it  are  not  of  a  dangerous  nature, 
and  anyone  who  keeps  an  animal  of  this  kind  is  not  liable  for  the 
damage  it  may  do,  unless  he  knew  that  it  was  dangerous.  What, 
then,  is  the  best  way  of  dealing  generally  with  these  different  cases? 
I  suppose  there  can  be  no  dispute  that  there  are  some  animals  that 
every  one  must  recognize  as  not  being  dangerous  on  account  of  their 
nature.  Whether  they  are  fercB  natures  so  far  as  rights  of  property  are 
concerned  is  not  the  question;  they  certainly  are  not  so  in  the  sense 
that  they  are  dangerous.  There  is  another  set  of  animals  that  the 
law  has  recognized  in  England  as  not  being  of  a  dangerous  nature, 
such  as  sheep,  horses,  oxen,  dogs,  and  others  that  I  will  not  attempt 
to  enumerate.  I  take  it  this  recognition  has  come  about  from  the 
fact  that  years  ago,  and  continuously  to  the  present  time,  the  progeny 
of  these  classes  has  been  found  by  experience  to  be  harmless,  and  so 
the  law  assumes  the  result  of  this  experience  to  be  correct  without 
further  proof.  Unless  an  animal  is  brought  within  one  of  these  two 
descriptions  —  that  is,  unless  it  is  shown  to  be  either  harmless  by  its 
very  nature,  or  to  belong  to  a  class  that  has  become  so  by  what  may  be 
called  cultivation  —  it  falls  ^-ithin  the  class  of  animals  as  to  which 
the  rule  is,  that  a  man  who  keeps  one  must  take  the  responsibility  of 
keeping  it  safe.  It  cannot  possibly  be  said  that  an  elephant  comes 
within  the  class  of  animals  known  to  be  harmless  by  nature,  or  within 
that  showTi  by  experience  to  be  harmless  in  this  country,  and  conse- 
quently it  falls  within  the  class  of  animals  that  a  man  keeps  at  his 
peril,  and  which  he  must  prevent  from  doing  injury  under  any  circum- 
stances, unless  the  person  to  whom  the  injury  is  done  brings  it  on  him- 
self. It  was,  therefore,  immaterial  in  this  case  whether  the  particular 
animal  was  a  dangerous  one,  or  whether  the  defendants  had  any 
knowledge  that  it  was  so.  The  judgment  entered  was  in  these  cir- 
cumstances right,  and  the  appeal  must  he  dismissed. 

LiNDLEY,  L.  J.  I  am  of  the  same  opinion.  The  last  case  of  this 
kind  discussed  was  May  v.  Burdett,^  but  there  the  monkey  which  did 
the  mischief  was  said  to  be  accustomed  to  attack  mankind,  to  the 
knowledge  of  the  person  who  kept  it.  That  does  not  decide  this  case. 
We  have  had  no  case  cited  to  us,  nor  any  e\ndence,  to  show  that  ele- 
phants in  this  country  are  not  as  a  class  dangerous;  nor  are  they  com- 

iQQ.  B.  101. 


SECT.  II.]  HARDIMAN    V.    WHOLLEY.  357 

raonly  known  here  to  belong  to  the  class  of  domesticated  animals. 
Therefore  a  person  who  keeps  one  is  liable,  though  he  does  not  know 
that  the  particular  one  that  he  keeps  is  mischievous.  Appl3'ing  that 
principle  to  this  case,  it  appears  that  the  judgment  for  the  plaintiff 
was  right,  and  this  appeal  must  be  dismissed. 

BowEN,  L.  J.  I  am  of  the  same  opinion.  The  broad  principle  that 
governs  this  case  is  that  laid  down  in  Fletcher  v.  Rylands,^  that  a 
person  who  brings  upon  his  land  anything  that  would  not  naturally 
come  upon  it,  and  which  is  in  itself  dangerous,  must  take  care  that  it  > 
is  kept  under  proper  control.  The  question  of  liability  for  damage 
done  by  mischievous  animals  is  a  branch  of  that  law  which  has  been 
applied  in  the  same  way  from  the  times  of  Lord  Holt  ^  and  of  Hale 
until  now.  People  must  not  be  wiser  than  the  experience  of  mankind. 
If  from  the  experience  of  mankind  a  particular  class  of  animals  is 
dangerous,  though  individuals  may  be  tamed,  a  person  who  keeps  one 
of  the  class  takes  the  risk  of  any  damage  it  may  do.  If,  on  the  other 
hand,  the  animal  kept  belongs  to  a  class  which,  according  to  the 
experience  of  mankind  is  not  dangerous  and  not  likely  to  do  mis- 
chief, and  if  the  class  is  dealt  with  by  mankind  on  that  footing,  a 
person  may  safely  keep  suck  an  animal,  unless  he  knows  that  the 
particular  animal  that  he  keeps  is  likely  to  do  mischief.  It  cannot  be 
doubted  that  elephants  as  a  class  have  not  been  reduced  to  a  state  of 
subjection;  they  still  remain  wild  and  untamed,  though  individuals 
are  brought  to  a  degree  of  tameness  which  amounts  to  domestication. 
A  person,  therefore,  who  keeps  an  elephant,  does  so  at  his  own  risk, 
and  an  action  can  be  maintained  for  any  injury  done  by  it,  although 
the  owner  had  no  knowledge  of  its  mischievous  propensities.  I  agree, 
therefore,  that  the  appeal  must  be  dismissed. 

Appeal  dismissed. 


HARDIMAN  v.   WHOLLEY. 
Supreme  Judicial  Court  of  Massachusetts,  1899. 

[Rrporfcd  172  Mass.  411.] 

Holmes,  J.  This  is  an  action  to  recover  for  personal  injuries  caused 
by  the  kick  of  a  horse.  The  wagon  to  which  the  horse  was  attached 
had  stuck  in  the  mud  half  an  hour  before  the  accident,  and  this  horse 
and  another  had  been  unhitched  and  were  feeding  out  of  feed-bags 
attached  to  their  heads.  There  was  evidence  that  this  horse  had  been 
made  nervous  by  the  effort  to  pull  the  wagon  out,  and  by  being 
brutally  beaten,  and  that  he  was  standing  partially  on  the  sidewalk. 
He  was  standing  at  right  angles  to  it,  and,  as  the  plaintiff  approached, 

1  Law  Rep.  1  Ex.  265;  Law  Rep.  3.  H.  L.  .330. 
^  See  Mason  c.  Keeling,  12  Mod.  332. 


358  WILLIAMS    V.  BRENNAN.  [CHAP.  IV. 

suddenly  whirled  round  and  kicked  him.  The  case  is  here  upon  an 
exception  to  the  refusal  to  direct  a  verdict  for  the  defendant.  The  re- 
fusal was  right.  It  used  to  be  said  in  England,  under  the  rule  requir- 
ing notice  of  the  habits  of  an  animal,  that  every  dog  was  entitled  to 
one  worry,  but  it  is  not  universally  true  that  every  horse  is  entitled  to 
one  kick.  In'  England,  if  the  horse  is  a  trespasser  and  kicks  another, 
the  kick  will  enhance  the  damages  without  proof  that  the  animal  was 
vicious  and  that  the  owner  knew  it.  Lee  v.  Riley,  18  C.  B.  (N.  S.)  722. 
See  Lyons  v.  Merrick,  105  Mass.  71,  76.  So,  in  this  Commonwealth, 
going  further,  it  would  seem,  than  the  English  law,  a  kick  by  a  horse 
wrongfully  at  large  upon  the  highway  can  be  recovered  for  without 
proof  that  it  was  \acious.  Barnes  v.  Chapin,  4  Allen,  444.  Marsland 
V.  Murray,  148  Mass.  91.  Dickson  v.  McCoy,  39  N.  Y.  400,  401.  See 
Cox  V.  Burbidge,  13  C.  B.  (N.  S.)  430.  The  same  law  naturally  would 
be  applied  to  a  horse  upon  a  sidewalk  where  it  ought  not  to  be  (see 
Mercer  v.  Corbin,  117  Ind.  450,  454),  and  in  this  case  there  was  evi- 
dence of  the  further  fact  that  the  horse  was  in  an  exceptionally  nervous 
condition  in  consequence  of  the  driver's  treatment. 

Exceptions  overruled. 


WILLIAMS  V.   BRENNAN. 
Supreme  Judicial  Court  of  Massachusetts,  1912, 

[Reported  213  Ma^s.  28.] 

LoRiNG,  J.  This  is  an  action  under  R.  L.  c.  102,  §  146,  to  recover 
double  damages  for  injury  done  by  the  defendant's  dog  to  the  plaintiff's 
automobile.  The  presiding  judge,  [Quinn,  J.]  refused  to  direct  a  ver- 
dict for  the  defendant  and  the  case  is  here  on  an  exception  to  that 
ruling. 

It  appeared  that  as  the  plaintiff  was  driving  his  automobile  on  the 
right-hand  side  of  a  public  way  at  the  rate  of  some  fifteen  miles  an 
hour,  and  as  an  ice  wagon  with  a  single  heavy  horse  was  being  driven 
slowly  in  the  opposite  direction  on  the  other  side  of  the  road,  the  de- 
fendant's dog  was  seen  to  "go"  into  the  way  some  thirty  or  forty  feet 
ahead  of  the  plaintiff.  The  dog,  which  was  a  large  one  weighing  one 
hundred  and  thirty-five  pounds,  ran  toward  the  plaintiff's  automobile, 
barking  as  he  ran;  when  he  reached  the  automobile  he  snapped  at  the 
right  fore  tire,  but  missed  it,  and  his  body  struck  the  left  fore  wheel; 
this  caused  the  automobile  to  skid  to  the  other  side  of  the  road  so  that 
"the  automobile,  still  in  contact  with  the  dog,  came  directly  in  front 
of  the"  horse  of  the  ice  wagon.  "The  dog  did  not  touch  the  horse,  but 
when  the  automobile  came  in  front  of  the  horse  as  aforesaid,  the  horse 
reared  and  descended  upon  the  top  of  the  automobile,  causing  injuries 


SECT.  III.]  KRACH   V.   HEILMAN.  359 

to  it  for  which  this  action  is  brought."  The  only  contention  made  by 
the  defendant  is  that  on  this  evidence  the  jury  were  not  warranted 
in  finding  that  the  dog  was  the  sole,  direct,  and  proximate  cause  of 
the  injury.  Denison  v.  Lincoln,  131  Mass.  236,  is  decisive  against' that 
contention. 

Exceptions  overruled. 


SECTION   III. 

The  "  Civil  Damage"  Act. 

KRACH  V.  HEILMAN. 
Supreme  Court  of  Indiana,  1876. 

[Reported  53  Ind.  517.] 

WoRDEN,  C.  J.  Complaint  by  the  appellee  against  the  appellants 
in  two  paragraphs.  Demurrer  to  each  paragraph  for  want  of  sufficient 
facts  overruled,  and  exception.  Issue,  trial  by  jury,  verdict,  and  judg- 
ment for  plaintiff.^ 

The  substance  of  the  case  made  by  both  paragraphs  is,  that  the 
defendants  furnished  the  deceased  with  intoxicating  liquor,  until  he 
became  drunk  and  insensible  and  unable  to  take  care  of  himself;  that 
in  going  home,  lying  down  in  his  wagon  in  consequence  of  his  intoxica- 
tion, he  received  the  injury  from  the  barrel  of  salt,  which  injury  he 
would  not  have  received  but  for  having  been  intoxicated,  and  from 
which  injury  he  died. 

One  of  the  objections  made  to  the  complaint,  passing  over  others,  is, 
in  our  judgment,  fatal  to  both  paragraphs.  The  rule  of  law  is,  that  the 
immediate,  and  not  the  remote,  cause  of  any  event  is  regarded.  We 
have  seen  that  if  the  plaintiff  is  entitled  to  recover,  it  is  because  she 
was  injured  "in  consequence  of  the  intoxication"  of  the  deceased. 
The  immediate  cause  of  the  injury  to  the  plaintiff"  was  the  death  of 
the  deceased.  The  remote  cause  may  have  been  his  intoxication, 
which  led  to  his  injuries,  which  injuries,  in  their  turn,  led  to  his  death. 
The  plaintiff,  therefore,  was  not  immediately  injured  by  the  intoxica- 
tion of  the  deceased. 

The  rule  of  law  above  stated  is  well  enough  settled.  The  difficulty 
that  usually  arises  is  in  its  application.  It  is  sometimes  difficult  to 
determine  what  is  the  remote,  and  what  the  proximate  cause  of  an 
event.  But  no  difficulty  of  that  sort  arises  in  the  present  case.  Here, 
according  to  the  allegations,  it  is  clear  that  the  intoxication  of  the 
deceased  was  only  the  remote  cause  of  the  injury  to  the  plaintiff", 
while  his  death  was  the  immediate  cause  of  such  injury.     For  such 

'  The  complaint  is  omitted.  —  Ed. 


360  MEAD   V.    STRATTOIir.  [CHAP.  IV. 

injury,  we  think,  on  principle  and  well-considered  authority,  the  statute 
does  not  render  the  defendants  liable  to  the  plaintiff.' 

The  defendants,  in  causing  the  intoxication  of  the  deceased,  could 
not  have  anticipated  that  on  his  way  home  he  would  be  fatally  injured 
by  the  salt-barrel.  That  was  an  extraordinary  and  fortuitous  event, 
not  naturally  resulting  from  the  intoxication.  Suppose,  by  way  of 
illustration,  that  a  person,  by  reason  of  intoxication,  lies  down  under 
a  tree,  and  a  storm  blows  a  limb  down  upon  him  and  kills  him,  or  that 
lightning  strikes  the  tree  and  kills  him.  Could  it  be  said,  in  a  legal 
sense,  that  his  death  was  caused  by  intoxication?  In  the  chain  of 
causation,  the  intoxication  may  have  been  the  remote  cause  of  his 
death,  because,  if  he  had  not  been  intoxicated,  he  would  not  have  placed 
himself  in  that  position,  and  therefore  would  not  have  been  struck  by 
the  limb  or  lightning.  In  the  case  supposed,  it  may  be  assumed  as 
clear,  that  the  parties  causing  the  intoxication  would  not  be  liable, 
under  the  statute,  to  the  widow,  as  for  an  injury  to  her  caused  by  the 
intoxication  of  the  deceased.  Yet  there  is  no  substantial  difference 
between  the  case  supposed  and  the  real  case  here.  See,  on  the  subject 
of  remote  and  proximate  causation,  the  case  of  Kelley  v.  The  State, 
53  Ind.  311;  also,  Durham  v.  Musselman,  2  Blackf.  96. 

The  judgment  below  is  reversed,  with  costs,  and  the  cause  remanded, 
with  instructions  to  the  court  below  to  sustain  the  demurrer  to  each 
paragraph  of  the  complaint. 


MEAD   V.   STRATTON. 
Court  of  Appeals,  New  York,  1882. 
[Reported  87  N.  Y.  493.] 

Miller,  J.  This  action  was  brought  by  the  plaintiff,  who  was  the 
wife  of  Charles  Mead,  deceased,  to  recover  damages  sustained  in  her 
means  of  support  by  the  death  of  her  husband  in  consequence  of 
intoxication  produced  by  liquor  sold  to  him  by  said  defendant  Isaac  J. 
Stratton,  at  the  hotel  kept  by  him,  of  which  the  said  Margaret  M. 
Stratton,  the  wife  of  said  Isaac  J.  Stratton,  was  the  owner;  and  which, 
it  is  claimed,  she  rented  to  her  husband,  or  permitted  to  be  occupied 
as  a  hotel,  knowing  that  into.xicating  liquors  were  to  be  and  had  been 
sold  upon  said  premises. 

The  complaint  alleges  that  in  consequence  of  the  acts  of  the  de- 
fendants stated  and  set  forth,  and  in  consequence  of  the  intoxication 
of  the  late  husband  of  plaintiff,  caused  as  aforesaid,  plaintiff  had 
been  injured  in  her  means  of  support  and  property. 

^  The  court  here  considered  the  following  cases:  Tisdale  v.  Norton,  8  Met.  388; 
Marble  i'.  Worcester,  4  Gray,  395;  Grain  v.  Petrie,  6  Hill,  522;  Ryan  v.  New  York 
Central  R.R.,  35  N.  Y.  210;  Fairbanks  v.  Kerr,  70  Pa.  86.  —  Ed. 


SECT.  III.]  MEAD    V.   STRATTON.  30 1 

The  essential  facts  established  by  the  verdict  were  that  the  de- 
icndant  Isaac  J.  Stratton  was  the  keeper  of  the  hotel,  and  the  deed 
was  given  to  his  wife  who  had  general  charge  of  the  house,  except 
the  bar,  but  was  cognizant  of  the  fact  that  intoxicating  liquors  were 
sold  there;  that  the  deceased  came  to  the  house  with  a  horse  and 
buggy,  drank  intoxicating  liquors  several  times  there,  and  became  so 
much  intoxicated  that  he  was  helped  into  his  buggy  upon  starting  for 
home;  that  he  must  have  fallen  in  his  buggy,  as  he  was  found  dead, 
with  his  knee  caught  tightly  under  the  iron  cross  or  foot  bar,  and  his 
head  over  between  the  wheel  and  the  wagon,  so  that  his  head  was 
beaten  by  the  spokes  and  otherwise  injured;  and  that  he  left  a  wife 
and  several  children  who  were  dependent  upon  him  for  support. 

The  statute  (chap.  646,  Laws  of  1873)  under  which  this  action  is 
brought  provides,  that  every  husband,  wife,  etc.,  "or  other  person 
who  shall  be  injured  in  person  or  property  or  means  of  support  by  any 
intoxicated  person,  or  in  consequence  of  the  intoxication  .  .  .  shall 
have  a  right  of  action  in  his  or  her  name  against  the  person  who  shall, 
by  selling  or  giving  away  the  intoxicating  liquors,  cause  the  intoxica- 
tion .  .  .  and  any  person  or  persons  owning  or  renting,  or  permitting 
the  occupation  of  any  building  or  premises,  and  having  knowledge  that 
intoxicating  liquors  are  to  be  sold  therein,  shall  be  liable,  severally  or 
jointly  with  the  person  or  persons  selling  .  .  .  for  all  damages  sus- 
tained and  for  exemplary  damages."  The  statute  cited  provides  for 
a  recovery  by  action  for  injuries  to  person  or  property,  or  means  of 
support,  without  any  restriction  whatever.  Both  direct  and  conse- 
quential injuries  are  included,  and  it  was  evidently  intended  to  create 
a  cause  of  action  unknown  to  the  common  law,  and  a  new  ground  and 
right  of  action.  (Volans  v.  Owen,  74  N.  Y.  526.)  The  injury  to  the 
means  of  support  was  one  of  the  main  grounds  of  the  action,  and  when 
the  party  is  deprived  of  the  usual  means  of  maintenance,  which  he  or 
she  was  accustomed  to  enjoy  previously,  by  or  in  consequence  of  the 
intoxication  or  the  acts  of  the  person  intoxicated,  the  action  can  be 
maintained.  (Id.)  It  is  evident  that  the  legislature  intended  to  go 
in  such  a  case  far  beyond  anything  known  to  the  common  law,  and  to 
provide  a  remedy  for  injuries  occasioned  by  one  who  was  instrumental 
in  producing,  or  who  caused  such  intoxication.  While  a  statute  of  this 
character  should  not  be  enlarged,  it  should  be  interpreted,  where  the 
language  is  clear  and  explicit,  according  to  its  true  intent  and  meaning, 
having  in  view  the  evil  to  be  remedied  and  the  object  to  be  attained. 
The  evident  object  was  to  suppress  the  sale  and  use  of  intoxicating 
liquors,  and  to  punish  those  who,  in  any  form,  furnished  means  of 
intoxication,  bN-  making  them  liable  for  damages  which  might  arise, 
which  were  caused  by  the  parties  who  furnished  such  means.  If  the 
injury  which  had  resulted  to  the  deceased  in  consequence  of  his  intoxi- 
cation had  disabled  him  for  life,  or  to  such  an  extent  as  to  incapacitate 
him  for  labor  and  for  earning  a  support  for  his  family,  it  would  no 


362  MEAD    V.    STRATTON.  [CHAP.  IV. 

doubt  be  embraced  within  the  meaning  and  intent  of  the  statute. 
That  death  ensued  in  consequence  thereof,  furnishes  much  stronger 
ground  for  a  claim  for  a  loss  of  means  of  support;  and  a  different  rule 
in  the  latter  case  would  make  provision  for  the  lesser  and  temporary- 
injury,  while  that  which  was  greatest  and  most  serious  would  be  with- 
out any  remedy  or  means  of  redress.  Such  could  not  have  been  the 
intention  of  the  lawmakers,  and  the  statute  was  designed  to  embrace 
and  must  manifestly  cover  and  include  all  injuries  produced  by  the 
intoxication,  and  which  legitimately  result  from  the  same.  If  it  is  an 
injury  which  can  be  repaired  by  damages,  as  that  arising  from  a  tem- 
porary disability,  or  one  where  death  comes  as  a  natural  and  legitimate 
consequence  of  the  intoxication,  a  case  is  made  out  within  the  statute 
which  entitles  the  injured  party  to  recover  such  damages.  The  argu- 
ment that  in  this  case  it  was  the  remote  cause,  and  not  the  natural 
and  proximate  cause  of  the  act  of  the  defendant,  would  apply  with 
equal  force  if  death  had  not  followed,  and,  we  think,  has  no  point  under 
the  peculiar  circumstances  of  this  case. 

There  are  some  decisions  in  the  Supreme  Court  of  this  State  which 
bear  upon  the  subject.  In  Hayes  v.  Phelan  (4  Hun,  733)  the  opinion 
holds  that  the  statute  gave  a  right  of  action  only  in  cases  where  it  lies 
against  the  intoxicated  person.  This  conclusion  does  not,  however, 
appear  to  have  been  sustained  by  a  majority  of  the  judges  constituting 
the  General  Term,  and  in  a  note  to  Dubois  v.  Miller  (5  Hun,  335)  an 
opinion  of  James,  J.,  is  published,  dissenting  from  the  views  expressed 
in  Hayes  v.  Phelan,  and  it  is  stated  that  Boardman,  J.,  concurred  only 
in  the  result  arrived  at  in  the  decision,  and  only  two  justices  were 
present.  In  Brookmire  v.  Monaghan  (15  Hun,  16),.  where  the  complaint 
asked  damages  only  by  reason  of  the  death  of  plaintiff's  husband,  which, 
it  was  alleged,  was  caused  by  intoxication  by  liquor  sold  to  the  deceased 
by  the  defendant,  it  was  held  that  the  complaint  did  not  state  a  cause 
of  action  under  the  Civil  Damage  Act,  and  it  was  said  that  the  court 
had  heretofore  decided,  in  Hayes  v.  Phelan,  that  such  damages  are  not 
recoverable  under  the  act  of  1873.  The  same  question  arose  in  the 
fourth  judicial  department  in  Jackson  v.  Brookins  (5  Hun,  530);  and 
it  was  there  held,  that  where  several  persons  became  intoxicated,  and 
engaged  in  an  affray  in  which  one  is  killed,  his  widow  may  maintain 
an  action  against  the  person  who  sold  the  liquor  which  caused  the  in- 
toxication, to  recover  damages  sustained  by  her  for  the  death  of  the 
husband.  The  same  doctrine  is  upheld  in  Smith  v.  Reynolds  (8  Hun, 
128).  In  Quain  v.  Russell  (8  id.  319),  in  the  third  department,  it  was 
held  by  a  majority  of  the  court,  that  it  was  not  essential  to  the  exist- 
ence of  the  cause  of  action,  under  the  Civil  Damage  Act,  against  the 
\'endor  of  liquors,  that  an  action  should  also  be  maintainable  against 
the  intoxicated  person,  and  it  is  sufficient  if  the  wife  has  been  injured 
in  her  means  of  support  through  the  intoxication  of  the  husband.  The 
case  of  Hayes  v.  Phelan  is  referred  to,  and  it  is  said  that  no  such  prin- 


1 


SECT.  III.]  MEAD    V.    STRATTON.  363 

ciple  as  is  claimed  in  the  last  case  was  decided  by  the  court.     It  will 
thus  be  seen  that  the  decisions  of  the  Supreme  Court  in  this  State  are 
not  entirely  harmonious.     In  the  State  of  Illinois  it  is  held  that  the 
action  will  lie  when  death  ensues.     (See  Schroder  v.  Crawford,  94  111. 
357;    Hackett  v.  Smelsley,  77  id.  109.)      The  same  rule  is  upheld  in 
Nebraska  (Roose  v.  Perkins,  9  Neb.  304),  and  in  the  State  of  Iowa 
(Rafferty  v.  Buckman,  46  Iowa,  195).     Some  exceptions  are  made  by 
the  courts  of  Illinois  when  the  person  intoxicated  is  killed  in  an  affray 
or  when  death  results  from  exposure.     (Shugart  v.  Egan,  83  111.  56; 
Schmidt  v.  Mitchell,  84  id.  195.)    It  is  not  necessary  to  decide  whether 
these  decisions  are  based  on  a  sound  principle,  as  no  such  question 
arises  in  the  case  at  bar.    Cases  are  also  cited  from  Indiana,  which  are 
claimed  to  be  adverse  to  the  views  expressed.     (See  Krach  t.  Heilman, 
53  Ind.  517;  Collier  v.  Early,  54  id.  559;  Backes  v.  Dant,  55  id.  181.) 
In  Krach  v.  Heilman  (supra),  the  person  intoxicated  was  killed  in  an 
affray.    The  last  two  cases  cited  are  somewhat  analogous  to  the  case 
at  bar,  but  the  decision  of  the  court  is  not,  we  think,  well  supported  in 
either  of  them.    It  is  also  held  in  Ohio,  that  under  the  act  in  that  State 
in  relation  to  the  sale  of  intoxicating  liquors  for  injury  to  the  means  of 
support  in  consequence  of  intoxication  which  caused  death,  no  recovery 
of  damages  can  be  had.     (Davis  v.  Justice,  31  Ohio,  359;  Kirchner  v. 
Myers,  35  id.  85.)    We  cannot  concur  in  such  an  interpretation  of  the 
act  in  question,  and  for  the  reasons  already  stated  are  of  the  opinion, 
that,  if  the  death  of  the  deceased  was  a  result  necessarily  following  the 
intoxication,  and  was  attributable  to  such  intoxication,  an  action  will 
lie  to  recover  the  damages  arising  to  the  means  of  support  of  the  plain- 
tiff by  reason  thereof.    While  thus  holding,  it  is  not  necessary  to  decide 
whether  a  person  producing  the  intoxication  would  be  liable  when  death 
ensued  by  reason  of  an  affray  caused  thereby,  or  under  different  cir- 
cumstances from  those  which  are  presented  in  the  case  at  bar.    Nor  are 
we  called  upon  to  consider  in  this  case  the  effect  of  the  statute  so 
far  as  it  affects  the  right  of  action  of  the  children  of  the  deceased  for 
damages  sustained  by  each  of  them,  as  that  question  is  not  now  pre- 
sented.   The  conclusion  follows,  that  there  was  no  error  committed  by 
the  judge  upon  the  trial  in  any  of  his  rulings  in  regard  to  the  question 
considered.    A  claim  is  also  made,  that  the  judge  erred  in  refusing  to 
dismiss  the  complaint,  or  to  nonsuit  the  plaintiff  as  to  the  defendant 
Margaret  M.  Stratton.    The  title  to  the  hotel  was  in  her,  and  she  lived 
there  with  her  husband,  having  charge  of  the  domestic  arrangements 
in  conducting  the  business  of  the  hotel.    There  is  evidence  tending  to 
show  that  she  had  knowledge  that  her  husband  was  engaged  in  the 
business  of  selling  intoxicating  liquors,  and  that  he  intended  to,  and  did 
actually,  carry  on  and  prosecute  such  business.    Under  the  evidence  it 
was  a  question  of  fact  for  the  jury  to  determine,  whether  she  had 
knowledge  that  the  buikling  was  occupied  and  used  by  her  husband  for 
any  such  purpose.     And  this  result  was  to  be  arrived  at  after  a  due 


364  XEU    V.    M<  KECHNIE.  [CHAP.  IV. 

consideration  of  the  relations  existing  between  the  husband  and  his 
wife,  and  the  circumstances  surrounding  the  case."^  .  .  . 

It  is  not  important,  we  think,  to  consider  whether  the  strict  relation 
of  landlord  and  tenant  existed,  if  ^Irs.  Stratton  was  the  owner,  and 
permitted  her  husband  to  occupy  with  the  knowledge  of  the  business 
in  which  he  was  engaged  of  selling  intoxicating  liquors.  -There  was  no 
error  in  any  portion  of  the  charge  to  which  exceptions  were  taken,  or 
in  the  refusal  to  charge  as  requested,  or  in  any  other  of  the  rulings  on 
the  trial. 

The  judgment  was  right,  and  should  be  affirmed. 

All  concur,  except  Rapallo,  J.,  taking  no  part. 

Judgment  affirmed. 


NEU  V.   McKECHNIE. 

CouET  OF  Appeals,  New  York,  1884. 

[Reported  95  .V.  }'.  632.] 

Danforth,  J.  The  act  entitled  "  An  act  to  suppress  intemperance, 
pauperism  and  crime"  (Chap.  646,  Laws  of  1873),  provides  in  sub- 
stance that  certain  persons,  and  among  others,  a  "child,"  who  shall 
be  injured  in  means  of  support  by  any  intoxicated  person,  or  in  conse- 
quence of  the  intoxication  of  any  person,  shall  have  a  right  of  action 
against  any  person  who,  "  by  selling  .  .  .  intoxicating  liquors,  caused 
the  intoxication  in  whole  or  in  part,"  and  may  recover  from  such  vendor 
all  damages  so  sustained,  and  also  exemplary  damages. 

This  action  is  brought  under  that  act.  The  verdict  of  the  jury  es- 
tablishes that  the  plaintiff  at  the  time  the  alleged  cause  of  action  ac- 
crued was  a  child  of  the  age  of  fifteen  years,  the  son  of  Jacob  and 
Barbara  Neu;  that  he  was  living  with  his  parents  and  dependent  upon 
his  father  for  support,  when  the  latter,  in  a  state  of  intoxication,  pro- 
duced in  part  by  the  use  of  lager  beer,  sold  to  him  by  the  defendants, 
murdered  plaintiff's  mother  and  then  committed  suicide.  Upon  all 
these  questions  there  was  evidence  proper  for  submission  to  the  jury, 
and  their  finding  in  regard  to  them  has  not  been  disturbed  by  the 
General  Term.    Their  conclusion  is  not  open  to  review  here. 

The  learned  counsel  for  the  appellants,  however,  argues  with  much 
earnestness  that  the  act  which  deprived  the  plaintiflF  of  his  father  and 
cut  off  the  support  which  he  had  before  enjoyed  was  not  a  natural 
consequence  of  the  use  of  the  beer  sold  by  the  defendants;  that  they 
were  not  bound  to  know  that  Jacob  Neu  "  would  strike  his  wife  on  the 
head  with  an  axe,  and  then  cut  his  own  throat  with  a  razor."  Perhaps 
not.  But  a  cause  of  action  may  exist  without  such  foresight.  The 
statute  does  not  even  require  that  the  vendor  shall  know  that  drunken- 

'  The  discussion  of  this  point  is  omitted.  —  Ed. 


SECT.  III.]  DENNISON   V.   VAN    WORMEK.  365 

ness  leads  to  crime  of  any  degree,  nor  even  that  it  is  the  cause  of  pov- 
erty and  beggary,  and  consequent  distress  to  the  drunkard's  family. 
It  is  enough  that  these  results  come  from  intoxication,  and  so  in  Hill  v. 
Berry,  75  N.  Y.  229,  a  wife  recovered  of  the  landlord  and  his  tenant 
because  by  reason  of  liquors  sold  by  the  latter  her  husband  became 
intoxicated,  wasted  his  money,  neglected  his  employment,  and  became 
incompetent  to  labor,  and,  therefore,  unable  to  provide  for  her,  and  she 
was  obliged  to  care  for  him  while  in  that  condition.  She  suffered  not 
only  because  his  substance  was  reduced  to  nothing,  but  from  the  loss 
of  productive  labor.  In  Bertholf  v.  O'Reilly,  74  N.  Y.  509,  30  Am.  Rep. 
323,  the  landlord  was  required  to  pay  for  the  plaintiff's  horse,  because 
it  died  from  overdriving  induced  by  the  driver's  intoxication  through 
liquors  sold  by  the  defendant's  lessee.  In  Mead  v.  Stratton,  87  N.  Y. 
493,  41  Am.  Rep.  386,  the  wife  recovered  under  this  act,  because  the 
husband,  while  intoxicated  by  liquors  sold  on  the  defendant's  premises, 
was  beaten  to  death  by  the  wheel  of  his  own  wagon  while  the  reins 
were  in  his  hand,  although  he  was  in  a  state  of  stupor. 

In  those  cases,  as  well  as  in  others  arising  under  the  act,  liability  was 
established  from  the  sale  of  liquors  producing  intoxication,  and  the 
act  of  the  intoxicated  person  causing  injury  to  the  plaintiff  in  his  person, 
property,  or  means  of  support.  Those  elements  exist  here.  The  cause 
of  action  is  neither  taken  away  nor  mitigated  because  the  cause  of 
injury  also  constitutes  a  crime.  The  jury  were  not  to  inquire  whether 
either  "the  homicide  or  suicide  were  the  natural,  reasonable,  or  prob- 
able consequences  of  the  defendants'  act."  It  is  enough  if  while  intoxi- 
cated in  whole  or  in  part  by  liquors  sold  by  the  defendants,  those  acts 
were  committed,  if  by  reason  of  them,  or  either  of  them,  the  plaintiff's 
means  of  support  were  affected  to  his  injury.^ 


DExNNISON   V.   VAN  WORAIER. 

Supreme  Court  of  Michigan,  1895. 

[Reported  107  Mic^.  461.] 

McGrath,  C.  J.  This  is  case  against  a  saloon  keeper  and  his  bonds- 
men. The  declaration  alleges  that  the  sale  occurred  on  Sunday;  that 
plaintiff's  husband  was  intoxicated  at  the  time  of  the  sale,  and  was  in 
the  habit  of  getting  intoxicated,  to  defendant  Van  Wormer's  knowledge; 
that  he  drank  the  liquor  sold  to  him,  and  became  more  intoxicated; 
that  while  so  intoxicated,  and  being  thereby  deprived  of  his  reason,  he 
committed  the  crime  of  burglary,  by  breaking  and  entering  a  certain 
store  in  the  night-time,  for  which  crime  he  was  arrested,  tried,  and 

'  The  remainder  of  the  opinion  discusses  another  question.  —  Ed. 


366  DENNISON    V.    VAN    WORMER.  [CHAP.  IV. 

convicted,  and  sentenced  to  the  house  of  correction  for  the  terra  of 
three  3^ears.  It  appeared  upon  the  trial  that  the  husband  had  pre- 
viously committed  like  offenses,  and  had  served  time  in  Detroit  and 
Cleveland  for  two  of  them.  The  jury  returned  a  verdict  of  no  cause  of 
action.^ 

The  lanji^age  of  the  statute  (3  How.  Stat.  §  2283  e  3)  is: 

"Every  wife,  child,  parent,  guardian,  husband,  or  other  person  who 
shall  be  injured  in  person  or  property  or  means  of  support  or  otherwise 
by  any  intoxicated  person,  or  by  reason  of  the  intoxication  of  any  per- 
son, or  by  reason  of  the  selling,  giving,  or  furnishing  any  spirituous, 
intoxicating,  fermented,  or  malt  liquors  to  any  person,  shall  have  a 
right  of  action  in  his  or  her  own  name  against  any  person  or  persons 
who  shall,  by  selling  or  gi\ang  any  intoxicating  or  malt  liquor,  have 
caused  or  contributed  to  the  intoxication  of  such  person  or  persons,  or 
who  have  caused  or  contributed  to  such  injury." 

This  statute  clearly  refers  to  such  injuries  to  persons,  property,  or 
means  of  support  as  are  the  direct  results  of  the  acts  done  while  in- 
toxicated, and  to  such  other  injuries  as  indirectly  result  by  reason  of 
the  intoxication.  In  Brockway  v.  Patterson,  72  Mich.  122,  Lane  and 
Brockway  were  both  intoxicated,  and  quarreled,  Lane  striking  Brock- 
way  and  causing  his  death.  In  Thomas  v.  Dansby,  74  Mich.  398, 
Thomas  and  Free  were  both  intoxicated,  and  the  former's  leg  was 
broken  by  the  latter.  In  Wright  v.  Treat,  83  Mich.  1 10,  the  buggy  in 
which  plaintiff  was  riding  was  overturned,  and  plaintiff  was  injured, 
by  a  collision  with  a  vehicle  driven  by  Wells  and  Shafer,  who  were  in- 
toxicated and  were  recklessly  driving.  In  Doty  v.  Postal,  87  Mich. 
143,  plaintiff's  husband  was  killed  by  an  intoxicated  person.  In 
Eddy  V.  Courtright,  91  Mich.  264,  plaintiff's  adult  son  was  drowned 
while  intoxicated.  In  Neu  v.  McKechnie,  95  N.  Y.  632,  plaintiff's 
father  killed  the  former's  mother  and  then  himself  while  intoxicated. 
In  these  cases  the  act  done  injured  plaintiff's  person,  or  took  from  plain- 
tiff the  means  of  support.  In  the  present  case,  plaintiff's  husband  was 
not  injured  or  killed  by  an  intoxicated  person,  nor  did  the  act  done  by 
him  cut  off  her  support.  The  act  done  was  not  a  direct  blow  at  her 
person,  property,  or  means  of  support.  It  was  his  arrest,  con\'iction, 
and  sentence  which  depri^'ed  her  of  his  aid.  And,  too,  a  felonioiis  in- 
tent was  an  essential  ingredient  of  the  crime  for  which  he  was  convicted. 

Whether  that  conviction  was  or  was  not  conclusive,  it  is  unnecessary 
here  to  determine.  The  trial  court  submitted  the  question  to  the  jury 
under  instructions  most  favorable  to  plaintiff. 

^  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT.  III.]  GAGE   V.   HAKVEY.  367 


GAGE  V.   HARVEY. 
Supreme  Court  of  Arkansas,  1898. 

[Reported  66  Ark.  68.] 

Battle,  J.  The  question  in  this  case  is,  can  one  who  becomes  in- 
toxicated upon  Hquor  sold  to  him  in  a  saloon  or  dram-shop  by  the  keeper 
thereof  or  his  agents,  and  thereby  incapacitated  to  hold  and  take  care 
of  his  money,  and  who,  while  in  that  condition,  loses  it  by  having  it 
forcibly  or  without  his  knowledge  or  consent  taken  from  his  pockets  by 
some  person,  maintain  an  action  against  the  keeper  and  the  sureties 
on  his  bond  to  recover  the  money  so  taken? 

This  question  arises  under  section  4870  of  Sandels  &  Hill's  Digest, 
which  provides:  "Each  applicant  for  a  dram-shop  or  drinking  saloon 
license  .  .  .  shall  enter  into  bond  to  the  State  of  Arkansas,  in  the  penal 
sum  of  two  thousand  dollars,  conditioned  that  such  applicant  will  pay 
all  damages  that  may  be  occasioned  by  reason  of  liquor  sold  at  his  house 
of  business,  .  .  .  which  bond  shall  have  two  good  securities  thereto, 
to  be  approved  of  by  the  court;"  and  under  section  4873  which  reads 
as  follows :  "  Any  person  aggrieved  by  the  keeping  of  said  dram-shop  or 
drinking  saloon  .  .  \  may  have  an  action  on  said  bond  against  the 
principal  and  securities  for  the  recovery  thereof." 

The  answer  to  the  question  obviously  depends  upon  the  meaning  of 
the  words,  "  conditioned  that  such  applicant  will  pay  all  damages  that 
may  be  occasioned  by  reason  of  liquor  sold  at  his  house  of  business," 
which  are  used  in  section  4870.  They  should  be  construed  according 
to  the  general  rule  fixing  the  limit  of  the  liability  of  parties  for  the 
consequences  of  their  acts  in  other  cases,  as  they  in  no  way  indicate  an 
intent  to  make  the  liability  of  the  saloon  keeper  an  exception  to  such 
rule.  According  to  their  legal  eflFect,  they  bind  him  to  pay  all  damages 
that  may  be  the  natural  and  proximate  result  of  the  use  or  consump- 
tion of  liquor  sold  by  him  or  his  agents  at  his  place  of  business.  Fur- 
ther than  this  the  law  does  not  extend  the  liability  on  his  bond  on  ac- 
count of  the  sale  of  liquor.  As  said  by  Lord  Bacon:  "It  were  infinite 
for  the  law  to  consider  the  cause  of  causes,  and  their  impulsion  one  of 
another;  therefore  it  contenteth  itself  with  the  immediate  cause,  and 
judgeth  of  acts  by  that,  without  looking  to  any  further  degree." 
Bacon's  Maxims,  Reg.  1;  Broom's  Legal  Maxims,  165. 

The  material  inquiry  in  this  case  is,  therefore,  whether  the  use  or 
consumption  of  the  liquor  sold  by  the  keeper  or  his  agents  at  his  place 
of  business  was  the  proximate  cause  of  the  loss  of  the  money  mentioned 
in  the  question  propounded. 

In  determining  whether  an  act  of  a  defendant  is  the  proximate  cause 
of  an  injury,  the  rule  is  that  the  injury  must  be  the  natural  and  prob- 


368  GAGE    V.    HARVEY.  [lHAl'.  IV. 

able  consequence  of  the  act  —  .such  a  consequence,  under  the  surround- 
ing circumstances  of  the  case,  as  might  and  ought  to  have  been  fore- 
seen by  the  defendant  as  hkely  to  flow  from  his  act;  the  act  must,  in 
a  natural  and  continuous  sequence,  unbroken  by  any  new  cause,  oper- 
ate as  an  efficient  cause  of  the  injury.  If  a  third  person  intervenes 
between  the  act  of  the  defendant  and  the  injury,  and  does  a  culpable 
act,  for  which  he  is  legally  responsible,  which  produces  the  injury,  and 
without  it  the  injury  would  not  have  occurred,  and  the  act  of  the  de- 
fendant furnished  merely  an  occasion  for  the  injury,  but  not  an  effi- 
cient cause,  the  defendant  would  not  be  liable.  For  no  one  is  responsible 
for  the  independent  wrong  of  a  responsible  person  to  whom  he  sustains 
no  relation  which  makes  him  liable  for  his  wrong  independent  of  an 
actual  participation  therein  or  connection  therewith,  as,  for  instance, 
the  master  for  the  acts  of  the  servant  in  the  scope,  course,  or  range  of 
his  emplojTnent. 

Mr.  Wharton  states  the  doctrine  in  question  and  answer  as  follows: 
"  Supposing  that,  if  it  had  not  been  for  the  intervention  of  a  responsible 
third  party,  the  defendant's  negligence  would  have  produced  no  damage 
to  the  plaintiff,  is  the  defendant  liable  to  the  plaintiff?  This  question 
must  be  answered  in  the  negative;  for  the  general  reason  that  causal 
connection  between  negligence  and  damage  is  broken  by  the  interpo- 
sition of  independent  responsible  human  action.  I  am  negligent  on  a 
particular  subject-matter  as  to  which  I  am  not  contractually  bound. 
Another  person,  moving  independently,  comes  in,  and  either  negli- 
gently or  maliciously  so  acts  as  to  make  my  negligence  injurious  to  a 
third  person.  If  so,  the  person  so  intervening  acts  as  a  non-conductor, 
and  insulates  my  negligence,  so  that  I  cannot  be  sued  for  the  mischief 
which  the  person  so  intervening  directly  produces.  He  is  liable  to 
the  person  injured."    Wharton,  Negligence,  §  134,  et  seq. 

Vse  will  give  a  few  illustrations  of  the  rule  stated,  beginning  with 
Alexander  v.  Town  of  New  Castle,  17  N.  E.  Rep.  200,  in  which  a  town 
was  sued  for  injuries  alleged  to  have  been  caused  by  a  pit  or  excavation 
in  a  street,  which  the  town  wrongfully  and  negligently  suffered  and 
permitted  to  remain  open  and  uninclosed.  The  plaintiff  was  a  special 
constable,  and  was  thrown  into  the  pit  by  a  prisoner  he  had  under 
arrest,  as  they  were  passing  and  opposite  the  pit,  and  was  injured,  the  . 
prisoner  escaping.  It  was  insisted  that,  as  the  pit  or  excavation,  so 
wrongfully  and  negligently  permitted  to  remain  open  and  uninclosed, 
afforded  the  prisoner  the  opportunity  of  throwing  the  plaintiff  into  it, 
as  a  means  of  escape,  it  was,  in  legal  contemplation,  the  proximate 
cause  of  the  injifries  which  the  plaintiff  receiA-ed.  But  the  court  held 
that  the  prisoner  was  clearly  an  inter^'ening  as  well  as  an  independent 
human  agency  in  the  infliction  of  the  injuries  oi  which  the  plaiatiff 
complained,  and  that  the  town  Avas  not  liable.  In  that  case  the  pit 
afforded  the  opportunity  to  inflict  the  injury,  but  was  not  an  efficient 
cause  of  it. 


SECT.  III.]  GAGE    V.    HARVEY.  3G9 

In  Mcars  v.  Wilcocks,  S  East,  1,  the  plaintiff  sued  the  defendant  for 
slander,  which  was  uttered  in  a  conversation  with  persons  who  were  not 
his  employers,  but  was  communicated  to  his  master,  and  attempted 
to  hold  him  liable  for  the  damage  he  suffered  by  reason  of  his  master 
discharging  him,  in  consequence  of  the  slander,  before  the  expiration 
of  his  term  of  service.  And  Lord  Ellenborough  said  that  the  special 
damage  must  be  the  legal  and  natural  consequence  of  the  words  spoken, 
otherwise  it  did  not  sustain  the  declaration;  and  here  it  was  an  illegal 
consequence,  a  mere  wrongful  act  of  the  master  for  which  the  defendant 
was  no  more  answerable  than  if,  in  consequence  of  the  words,  other 
persons  had  afterwards  asseml:)led  and  seized  the  plaintiff,  and  thrown 
him  into  a  horse  pond  by  way  of  punishment  for  his  supposed  trans- 
gression. And  his  lordship  asked  whether  any  case  could  be  mentioned 
of  an  action  of  this  sort  sustained  by  proof  only  of  an  injury  sustained 
by  the  tortious  act  of  a  tliird  person.  Cuff  v.  Newark  &  N.  Y.  R.  Co., 
35  N.  J.  L.  31. 

In  Shugart  v.  Egan,  83  111.  56,  the  plaintiff's  husband,  while  in  a 
state  of  intoxication  caused  by  liquors  obtained  by  him  from  the 
defendant,  insulted  or  menaced  one  McGraw,  who  thereupon  stabbed 
him,  inflicting  a  wound  whereof  he  died  shortly  afterwards.  The  court 
held  that  the  plaintiff  was  not  entitled  to  recover  under  a  statute  which 
gave  a  wife  "who  shall  be  injured  in  person,  property  or  means  of 
support"  in  consequence  of  the  intoxication  of  any  person  "a  right  of 
action  against  the  person  who  caused  the  intoxication,  and  made  such 
person  liable  for  all  damages  sustained  and  for  exemplary  damages." 
Mr.  Justice  Scholfield,  for  the  court,  said:  "It  has  also  been  held  that 
the  intervention  of  the  independent  act  of  a  third  person  between  the 
wrong  complained  of  and  the  injury  sustained,  which  was  the  direct  or 
immediate  cause  of  the  injury,  breaks  the  causal  connection;  and, 
consequently,  there  can,  in  such  case,  be  no  recovery  except  as  against 
the  person  whose  immediate  agency  produced  the  injury.  .  .  .  Here, 
the  death  not  resulting  from  intoxication  or  from  any  disease  induced 
or  aggravated  by  the  use  of  liquor,  but  solely  from  the  direct  and  wilful 
act  of  McGraw,  we  have  a  case  clearly  within  this  principle." 

In  the  case  before  us  the  intervening  act  produced  the  injury  com- 
plained of,  and  was  the  wrongful  act  of  a  third  person  for  which  he  was 
legally  responsible.  The  sale  and  consumption  of  the  liquor  may  have 
furnished  the  opportunity  or  occasion  for  the  wrongful  act  of  the  third 
person,  but  was  not  the  proximate  cause  of  the  injury.  Hence  the 
saloon  keeper,  who  sold  the  liquor  which  produced  the  intoxication, 
and  the  sureties  on  his  bond,  are  not  liable  for  damages.  Cuff  v. 
Newark  &  N.  Y.  R.  Co.,  35  N.  J.  L.  17. 

The  judgment  of  the  circuit  court  is  reversed  as  to  George  Sargiano- 
vich,  the  keeper  of  the  saloon,  and  J.  Kempner  and  D.  Beffa,  the  sure- 
ties on  his  bond,  and  is  affirmed  as  to  Vincent  Gage. 


370  ROACH   V.    KELLY.  [CHAP.  IV. 


ROACH  V.   KELLY. 

Supreme  Court  of  Pennsylvania,  1899. 

[Reported  194  Pa.  24.] 

Dean,  J.^  .  .  .  There  are  many  cases  where  the  question  of  remote 
or  proximate  cause  is  for  the  jury,  but  this  is  not  one  of  them.  The 
facts  are  undisputed;  deceased  had  an  old  grudge  against  Atkinson; 
when  heated  by  hquor  he  revived  the  old  quarrel;  in  gratification  of 
his  ill  will  he  also  picked  a  quarrel  with  Pratt,  the  father-in-law  of  the 
man  he  hated ;  they  proceeded  some  distance  to  private  property  and 
fought;  Roach  defeated  Pratt,  then  attacked  Atkinson;  while  engaged 
in  this  second  flagrant  breach  of  the  peace  the  cry  of  police  is  raised, 
and  all,  both  the  drunk  and  sober,  fled;  Roach,  by  the  concurring  cir- 
cumstances of  the  slip  on  the  bank  and  the  fall  into  the  open  sewer,  was 
killed.  Admit  that  his  resentment  on  account  of  the  old  grudge  and 
his  quarrelsomeness  were  prompted  by  the  liquor  and  resulted  in  the 
fight;  he  received  no  injury  in  that  consequence  of  defendant's  act; 
the  direct  ei^ect  of  the  liquor  ended  with  the  fight;  in  a  subsequent 
attempt,  however,  to  escape  arrest  foi'  a  violation  of  law  he  met  his 
death;  this  was  an  intermediate  cause,  disconnected  from  the  primary 
one,  for  which,  under  no  view  of  the  facts,  was  defendant  responsible. 
If  Roach  in  his  flight  had  been  arrested  by  the  officers,  and  in  a  scuffle 
to  escape  from  them  had  met  his  death,  it  might  as  well  have  been 
argued  the  proximate  cause  of  his  death  was  the  unlawful  sale  of 
liquor,  yet  it  is  too  plain  for  argument  that  the  resistance  to  the  offi- 
cers was  the  proximate  and  effective  intervening  cause,  while  at  most 
the  sale  of  liquor  was  the  very  remote  cause.^ 

The  statute  on  which  this  suit  is  founded  imposes  no  higher  degree 
of  responsibility  on  the  liquor  dealer  than  the  common  law  imposes 
upon  wrongdoers.  It  declares  he  "shall  be  held  civilly  responsible  for 
any  injury  to  person  or  property  in  consequence  of  such  furnishing." 
The  criminal  law  imposes  punishment  without  regard  to  the  conse- 
quences; the  civil  law  damages  only  for  the  natural  and  probable  con- 
sequences of  the  act.  It  might  be  plausibly  argued  that  defendant 
ought  to  have  so  far  foreseen  as  the  natural  and  probable  consequences 
of  his  act,  that  Roach  might  have  a  deadly  fall  on  the  highway  when 
going  to  his  home,  or  that  his  death  might  result  from  being  run  down 
by  cars  while  crossing  a  railroad  track,  or  by  falling  into  water  and 
drowning,  or  possibly  by  exciting  his  quarrelsome  disposition  his  death 
might  have  come  from  a  blow  inflicted  by  some  insulted  antagonist, 

1  Part  of  the  opinion  is  omitted.  —  Ed. 

^  The  court  here  quoted  from  the  following  cases:  Hoag  i\  R.  R.,  85  Pa.  293; 
Morrison  v.  Davis,  20  Pa.  171.  —  Ed. 


SECT.  III.]  CURRIER    V.    McKEE.  371 

but  that  he  should  quarrel  with  Pratt,  proceed  deliberately  through  a 
tunnel  to  a  private  lot  on  the  opposite  side  of  a  railway,  leisurely  cast 
off  his  clothing,  fight  with  Pratt  and  beat  him,  then  engage  with  At- 
kinson, then,  in  terror  of  the  law  which  he  had  violated,  flee  from  the 
officers,  slip  down  the  steep  bank  he  was  striving  to  climb,  fall  into  an 
open  sewer  hole  negligently  unguarded  on  a  private  lot,  and  thus  break 
his  neck,  surely  this  was  neither  the  natural  nor  probable  consequence 
of  giving  him  drink.  The  alleged  cause  is  so  remote  from  the  injury 
that  the  learned  judge  ought  to  have  said  peremptorily  that  there  could 
be  no  recovery. 
The  judgment  is  reversed  and  judgment  is  entered  for  defendant. 


CURRIER  V.  McKEE. 
Supreme  Judicial  Court  of  Maine,  1904. 

{Rejiorted  99  Me.  364.] 

Powers,  J.  This  is  an  action  under  the  civil  damage  act,  and  comes 
to  the  law  court  on  exceptions  to  the  ruling  of  the  presiding  justice 
directing  a  nonsuit. 

There  was  evidence  tending  to  prove  that  the  plaintiff  lived  with 
her  son.  Will  A.  Currier,  aged  thirty-four,  upon  his  farm  and  was  de- 
pendent upon  him  for  her  support;  that  the  defendant  sold  intoxi- 
cating liquor  to  the  son  which  caused  his  intoxication;  that  while  so 
intoxicated  he  entered  the  store  of  one  Boulier  who  ordered  him  out 
of  the  store;  that  he  went  out  but  turned  and  tried  to  come  back  with 
the  intention  of  striking  at  Boulier  and  having  a  fight  with  him;  that 
he  did  strike  at  Boulier,  who  thereupon  struck  him  and  broke  his  jaw, 
by  reason  whereof  his  ability  to  labor  was  decreased  and  the  support 
which  he  afforded  his  mother  sensibly  diminished. 

The  defendant  contends  that  no  recovery  can  be  had  except  for  those 
injuries  of  which  the  intoxication  is  the  proximate  cause;  that  the 
independent  act  of  an  intelligent  and  responsible  human  being  inter- 
vened and  caused  the  broken  jaw  from  which  all  damage  to  the  plain- 
tiff resulted,  and  that  the  intoxication  was  therefore  the  remote,  and 
not  the  proximate  cause  of  the  injury. 

R.  S.  1883,  c.  27,  §  49,  —  now  R.  S.  1903,  c.  29,  §  58,  —  creates  a 
new  cause  of  action  unknown  to  the  common  law,  and  so  far  as  is 
material  reads  as  follows:  "Every  wife,  child,  parent,  guardian,  hus- 
band, or  other  person  who  is  injured  in  person,  property,  means  of 
support  or  otherwise,  by  any  intoxicated  person,  or  by  reason  of  the 
intoxication  of  any  person,  has  a  right  of  action  in  his  own  name 
against  anyone  who  by  selling  or  giving  any  intoxicating  licjuors,  or 
otherwise,  has  caused  or  contributed  to  the  intoxication  of  such  per- 


372  CUKKIKR    V.    i\I(  KEE.  [CHAP.  IV. 

sons."     The  statute  is  aimed  at  the  suppression  of  a  great  evil,  and 
while  no  effort  should  be  made  by  a  forced  interpretation  to  extend  its 
meaning  beyond  what  was  fairly  intended,  it  should  be  liberally  con- 
strued so  as  to  effect  the  beneficent  purpose  for  which  it  was  enacted. 
In  its  terms  it  is  very  broad.     It  is  not  confined  to  unlawful  sales  as 
was  the  original  act  of  1858,  c.  33,  §  11,  R.  S.  1871,  c.  27,  §  32,  which 
was  repealed  by  the  public  laws  of  1872,  c.  63,  §  4,  and  the  present 
statute  substituted.     The  giver  equally  with  the  seller  is  made  liable 
for  the  injurious  consequences  of  his  act.    It  is  not  necessary  that  the 
intoxicating  liquor  furnished  by  the  person  sued  should  have  been  the 
sole  cause  of  the  intoxication;  it  is  sufficient  if  it  "contributed"  to 
it  in  an  appreciable  degree.     A  right  of  recovery  is  given  for  injuries 
produced  in  two  ways,  first,  "by  any  intoxicated  person,"  and  second, 
"by  reason  of  the  intoxication  of  any  person."     When  the  injury  is 
caused 'by  an  intoxicated  person,  it  need  not  be  shown  that  the  intoxica- 
tion caused  the  injurious  act.     In  such  case  it  is  sufficient  if  while  in 
a  state  of  intoxication,  to  which  liquors  furnished  by  the  defendant 
contributed,  such  intoxicated  person  commits  the   act  which  results 
in  injury  to  the  "person,  property,  means  of  support  or  otherwise"  of 
the  plaintiff.     The  furnishing  by  the  defendant  of  the  intoxicating 
liquor  must  have  contributed  as  a  proximate  cause  to  the  intoxication, 
and  the  act  of  the  intoxicated  person  must  have  been  the  cause  of  the 
injury,  but  it  is  not  necessary  that  the  intoxication  should  have  been 
the  proximate  cause  of  injury  or  of  the  act  which  caused  it.     Neu  v. 
McKechnie  et  al,  95  N.  Y.  632;  Brockway  v.  Patterson,  72  Mich.  122. 
The  legislature  seems  to  have  regarded  intoxicating  liquor  as  dangerous 
to  society,  and  to  have  intended  that  whoever  by  furnishing  liquor 
contributed  to  the  intoxication  of  any  person  should  be  held   respon- 
sible for  injuries  inflicted  by  him  while  in  that  condition,  without  plac- 
ing upon  the  sufferer  the  burden  of  showing  that  the  injury  was  due 
to  the  intoxication. 

This,  however,  is  but  to  show  the  scope  of  the  statute  and  that  it 
should  be  construed  in  no  narrow  or  ilHberal  spirit.  The  plaintiff 
claims  that  she  was  injured  in  her  means  of  support  not  by  an  intoxi- 
cated person,  but  "by  reason  of  the  intoxication"  of  her  son. 

If  this  provision  is  to  be  regarded  as  calling  for  the  same  sequence 
and  connection  of  causation  required  by  the  maxim  of  the  common 
law  which  the  defendant  invokes,  that  the  law  looks  to  the  proximate 
and  not  to  the  remote  cause,  the  oft  embarrassing  question  remains 
of  what  is  a  proximate  and  effective  although  not  the  immediate 
cause  of  the  injury.  Giving  to  the  defendant  the  full  benefit  of  the 
application  of  the  principle  which  he  claims,  still  the  statute  does  not 
require  that  the  furnishing  of  the  liquor  b\'  the  defendant  should  be 
the  proximate  cause  of  the  plaintiff's  injury,  but  only  that  it  should 
have  contributed  to  her  son's  intoxication  and  that  the  intoxication 
should  have  been  the  proximate  cause  of  the  injury.     It  is  urged 


SECT.  III.]  CURRIER   V.    McKEE.  37."j 

that  the  act  of  an  intelHgent  and  responsible  human  being,  the  blow 
struck  by  Boulier,  intervened  between  the  intoxication  of  the  son  and 
the  resulting  injury  to  the  plaintiff.  Upon  the  evidence,  however, 
the  jury  might  have  found  that  the  illegal  sales  of  intoxicating  liquor 
by  the  defendant  to  the  plaintiff's  son  caused  his  intoxication,  and  that 
his  intoxication  caused  him  to  make  an  assault  upon  Boulier,  and  that 
the  blow  of  the  latter  was  solely  in  self  defense  when  struck  at  by  the 
intoxicated  son.  If  so,  the  intervention  of  Boulier  was  rightful.  It 
is  the  wrongful  or  negligent  act  of  a  third  party  intervening  which 
breaks  the  chain  of  causation  and  relieves  the  original  wrongdoer  of 
the  consequences  of  his  wrongful  act;  but  if  in  the  right  he  is  not  re- 
sponsible and  the  party  injured  must  seek  reparation  from  him  whose 
wrongful  act  was  the  first  in  the  order  of  events  causing  the  injury. 

A  reference  to  some  of  the  authorities  will  show  that  this  principle 
has  been  frequently  recognized  ever  since  the  squib  case,  Scott  r. 
Shepard,  3  Wilson,  403,  and  also  the  liberal  manner  in  which  statutes, 
giving  a  right  of  reco^•er^\'  for  injuries  to  person,  property,  or  means 
of  support  "in  consequence  of"  or  "by  reason  of  the  intoxication  of 
any  person,"  have  been  construed. 

It  is  a  principle  of  law,  applicable  to  the  doctrine  of  proximate  cause, 
that  "if  the  original  act  was  wrongful  and  would  naturally  accord- 
ing to  the  ordinary  course  of  events  prove  injurious  to  some  other 
person  or  persons,  and  does  actually  result  in  injury  through  the  in- 
tervention of  other  causes  which  are  not  wrongful,  the  injury  shall  be 
referred  to  the  wrongful  cause,  passing  by  those  which  are  innocent. 
But  if  the  original  wrong  only  becomes  injurious  in  consequence  of  the 
intervention  of  some  distinct  wrongful  act  or  omission  b\-  another,  the 
injury  shall  be  imputed  to  the  last  wrong  as  a  proximate  cause,  and  not 
to  that  which  is  more  remote."    Cooley  on  Torts,  page  76. 

The  plaintiff's  son  was  struck  by  a  railroad  train  while  walking  upon 
the  track  in  an  intoxicated  condition.  It  was  held  that,  the  railroad 
company  not  being  in  fault,  the  intoxication  might  be  found  to  be  the 
proximate  cause  of  the  injury.  "Men  are  held  lial)le  every  day  in 
tort  for  the  natural  and  proximate  results  of  their  wrongs,  although 
the  particular  result  could  not  be  foreseen  as  necessary  at  the  time  of 
\\\e  act."    McNary  v.  Blackburn,  180  Mass.  141. 

In  Gage  v.  Harvey,  66  Ark.  68,  74  Am.  St.  R.  70,  an  intoxicated 
person  was  robbed  of  his  mone\',  and  the  person  selling  the  liquor  was 
held  not  liable.  "  The  intervening  act  produced  the  injury  complained 
of,  and  was  the  wrongful  act  of  a  third  person  for  which  he  was  legally 
responsible." 

In  Schmidt  v.  Mitchell,  84  111.  195,  it  was  held  that  if  a  person  in 
consequence  of  intoxication  should  get  into  a  difficulty  resulting  in 
his  being  shot  in  the  thigh,  the  party  selling  the  li(}uor  might  be 
responsible  for  the  direct  consequences  of  the  injury  received,  but 
that  if,  after  becoming  sober,  his  disregard  of  his  physician's  instruc- 


374  CURRIER   V.   McKEE.  [CHAP.  IV. 

tions  should  necessitate  the  amputation  of  his  leg,  the  liquor  seller 
would  not  he  responsible  for  the  loss  of  life.  There  the  wound  was  law- 
fully inflicted  by  one  P>eidenback  in  defense  of  his  house.  Shugart 
V.  Egan,  83  111.  56,  is  sometimes  cited  in  support  of  a  contrary  doc- 
trine. There,  however,  the  plaintiff's  husband,  in  consequence  of 
mere  words  used  by  him  while  intoxicated,  was  assaulted  and  slain  by 
one  McGraw.  It  is  evident  that  mere  words  would  not  justify  the 
assault  and  that  McGraw  was  a  wrongdoer.  The  same  court,  com- 
menting upon  Shugart  v.  Egan,  in  a  later  case,  said :  "  It  was  there  said 
to  be  the  common  experience  of  mankind  that  the  condition  of  one 
intoxicated  in\'ited  protection  against  violence  rather  than  attack, 
and  that  it  was  not  a  natural  and  probable  result  of  intoxication  that 
the  person  intoxicated  should  come  to  his  death  by  the  wilful  criminal 
act  of  a  third  party.  ...  It  was  not  the  intention  that  the  intoxicat- 
ing liquor  alone,  of  itself  exclusive  of  other  agency,  should  do  the  whole 
injury.  That  would  fall  quite  short  of  the  measure  of  remedy  intended 
to  be  given.  The  statute  was  designed  for  a  practical  end,  to  give  a 
substantial  remedy,  and  should  be  allowed  to  have  effect  according  to 
its  natural  and  obvious  meaning."  Schroden  v.  Crawford,  94  111.  357., 
Intoxication  was  held  to  be  the  proximate  cause  of  death  when  a  per- 
son was  drowned  in  l)athing.  Meyer  v.  Butterbrodt,  146  111.  131. 
The  party  causing  intoxication  cannot  escape  liability  because  he 
may  not  reasonably  have  foreseen  the  consequences.  Roth  r.  Eppy, 
SO  111.  283,  a  case  of  insanity  caused  by  habitual  intoxication.  Plain- 
tiff's husband  while  intoxicated  made  an  assault  upon  one  Morceau 
by  whom  he  was  killed.  Held  that  defendant  would  be  liable  on  ac- 
count of  the  sale  and  intoxication  resulting  from  such  sale  if  such  in- 
toxication was  the  effective  cause  of  the  injury.  Baker  &  Reddick  v. 
Summers,  201  111.  52. 

The  leg  of  plaintiff's  husband  was  broken  by  one  Free,  in  a  drunken 
scuffle.  Both  the  husband  and  Free  were  intoxicated  at  the  time  by 
liquor  sold  by  the  defendant.  In  affirming  a  verdict  for  the  plaintiff, 
the  court  said:  "If  the  injury  was  occasioned  by  reason  of  the  in- 
toxication of  Thomas  or  Free,  and  such  intoxication  was  produced,  in 
whole  or  in  part,  by  the  liquors  sold  by  the  defendant  Dansby,  then  the 
case  would  fall  within  the  terms  of  the  statute,  and  a  recovery  could 
be  had  if  the  plaintiff  by  reason  thereof  was  injured  in  her  means  of 
support."  Thomas  v.  Dansby,  74  Mich.  398.  A  conviction  of  drunken- 
ness has  been  held  a  proximate  result  of  intoxication  such  as  will  render 
the  one  furnishing  the  liquor  liable  to  the  wife  for  injuries  resulting 
therefrom.     Lucher  v.  Liske,  111  Mich.  683. 

The  c|uestion  of  proximate  cause  is  for  the  jury  under  appropriate 
instructions  of  law.  One  is  not  bound  to  anticipate  what  is  merely 
possible,  nor  on  the  other  hand  is  he  liable  for  such  consequences  only 
as  usually  follow.  It  is  sufficient  if  the  result  ought  to  have  been 
apprehended  accoiding  to  the  usual  experience  of  mankind. 


SECT.  III.]  MINOT   V.    DOHERTY.  375 

The  defendant  need  not  have  intended  that  the  plaintiff's  son  should 
make  an  assault  upon  BouHer  or  even  have  expected  it  or  the  injury 
which  followed.  Enough  if  according  to  human  experience  it  was  to 
be  apprehended  that  such  results  were  likely  to  happen  from  the  in- 
toxication. The  legislature  deals  with  intoxicating  liquor  upon  the 
assumption  that  it  is  the  enemy  of  society,  that  intoxication  weakens 
the  will,  disturbs  the  judgment,  saps  the  moral  forces,  and  is  the  fruit- 
ful source  of  vice  and  crime  attended  by  personal  injury  and  loss.  It 
is  natural  as  well  as  lawful  that  one  assaulted  should  use  reasonable 
force  to  repel  the  assailant  even  to  his  personal  injury.  It  is  for  the 
jury  to  say  who  is  the  assailant,  and  whether,  under  the  circum- 
stances, the  force  used  was  reasonable  and  appropriate.  It  is  also 
for  them  to  determine  whether  one,  who  lets  loose  such  a  dangerous 
agent  as  intoxicating  liquor,  is  not  bound  to  apprehend  that  the  in- 
toxication thereby  produced  is  likely  to  cause  unjustifiable  assaults 
and  consequent  injury  to  the  assailant. 

In  the  case  at  bar  there  was  evidence  tending  to  show  that  the  in- 
toxicating liquor  sold  by  the  defendant  caused  the  intoxication  of  the 
plaintiff's  son,  that  by  reason  of  such  intoxication  he  made  an  assault 
upon  Boulier,  and  that  the  latter  acting  in  self  defense  struck  the  blow 
which  diminished  the  son's  capacity  to  labor,  resulting  in  injury  to  the 
plaintiff's  means  of  support.  If  these  issues  are  found  in  the  affirmative, 
then,  under  the  broad  and  sweeping  provisions  of  the  statute  we  are 
considering,  we  think  it  may  be  said  that  the  plaintiff  was  injured  in 
her  means  of  support  "by  reason  of  the  intoxication"  of  her  son.  The 
court  cannot  say  that  the  intoxication  would  not  then  be  the  "one 
efficient  procuring  cause  without  which  the  injury  would  not  have 
happened."  Oilman  v.  E.  &  N.  A.  Ry.  Co.,  60  Maine,  235.  The 
case  should  have  been  submitted  to  the  jury. 

Exceptions  sustained. 


MINOT  V.   DOHERTY. 
Supreme  Judicial  Court  of  Massachusetts,  1909. 

[Reported  203  Mass.  37.] 

Tort  under  R.  L.  c.  100,  §  58,  by  a  married  woman  against  the 
proprietor  of  a  bar  room  for  personal  injuries,  resulting  in  an  alleged 
miscarriage,  from  an  assault  upon  the  plaintiff  by  her  husband  in 
consequence  of  intoxication  caused  by  liquor  sold  to  him  by  the  de- 
fendant.   Writ  dated  November  8,  1905. 

In  the  Superior  Court  the  case  was  tried  before  Stevens,  J.  At  the 
close  of  the  evidence  the  defendant  asked  the  judge  to  give  certain 
instructions  to  the  jury,  among  which  were  the  following: 


376  MINOT    V.    DOHERTY.  [CHAP.  IV. 

"8.  There  is  no  evidence  that  the  alleged  miscarriage  was  suf- 
fered in  consequence  of  the  intoxication  of  the  plaintiff's  husband 
caused  in  whole  or  in  part  by  liquor  sold  or -given  him  by  the  defend- 
ant." 

"11.  The  jury  cannot  consider  the  plaintiff's  pain  in  labor  at  the 
time  of  the  alleged  miscarriage  as  an  element  of  damage,  as  there  is 
no  evidence  that  such  pain  was  more  aggravated  than  would  ultimately 
and  naturally  result  from  her  pregnancy." 

The  judge  refused  to  give  these  instructions,  and  submitted  the  case 
to  the  jury  with  instructions  which  are  described  in  the  opinion. 

The  jury  returned  a  verdict  for  the  plaintiff  in  the  sum  of  $1,500; 
and  the  defendant  alleged  exceptions  to  the  judge's  refusal  to  give 
the  eighth  and  the  eleventh  instructions  requested  by  the  defendant, 
and  to  "  that  portion  of  the  charge  relating  to  the  defendant's  liability, 
if  the  plaintiff's  husband  was  a  confirmed  and  habitual  drunkard  and 
his  confirmed  habits  were  continued  in  whole  or  in  part  by  liquor 
supplied  by  the  defendant." 

LoRiNG,  J.  1.  The  defendant  urges  in  support  of  his  exception  to 
the  refusal  of  the  judge  to  give  the  eighth  ruling  asked  for  that  "the 
defendant  would  not  be  liable  if  an  habitual  drunkard,  to  the  forma- 
tion of  whose  habits  of  intoxication  the  defendant  had  in  whole  or  in 
part  contributed,  committed  an  assault  while  perfectly  sober."  That 
is  true.  That  was  decided  to  be  law  in  Bryant  v.  Tidgewell,  133  Mass. 
86.  But  it  was  laid  down  in  that  case  that  if  a  man  who  is  habitually 
drunk  for  a  specified  period  assaults  his  wife  at  that  time,  a  defendant 
who  by  selling  him  liquor  had  caused  that  drunkenness  in  whole  or  in 
part  would  be  liable  if  his  intoxication  at  that  time  was  the  cause  of 
the  assault.  That  case  established  the  distinction  between  causing  a 
husband  to  form  habits  of  drunkenness  by  selling  liquor  to  him  and 
causing  him  to  be  habitually  drunk  during  a  specified  period  by  selling 
liquor  to  him. 

The  defendant  has  also  argued  that  there  was  no  e^'idence  that  the 
husband  was  in  fact  intoxicated  at  the  time  of  the  assault.  But  we 
are  of  opinion  that  from  the  evidence  set  forth  in  the  bill  of  exceptions 
the  jury  were  warranted  in  finding  that  he  was  intoxicated  at  that 
time.  Moreover  the  bill  of  exceptions  does  not  purport  to  set  forth 
all  the  e\ndence.  Further,  although  the  whole  charge  is  not  given,  it 
affirmatively  appears  that  the  presiding  judge  instructed  the  jury 
that  they  must  find  that  fact.  He  told  them  that  he  had  been  asked 
to  give  them  this  instruction:  "The  burden  is  upon  the  plaintiff  to 
show  that  the  intoxication  of  the  husband  at  the  time  it  is  alleged 
that  he  struck  and  injured  her  was  caused  in  whole  or  in  part  by  liquors 
sold  or  given  him  by  the  defendant."  As  to  this  he  told  the  jury: 
"  I  have  already  given  you  that  and  I  repeat  it." 

2.  In  explaining  to  the  jury  that  the  defendant  would  not  be  liable 
for  habits  of  intoxication  formed  by  the  husband  before  any  liquor 


SECT.  IV.]  BLAKE    V.    HEAD.  377 

was  sold  to  him  by  the  defendant,  the  judge  said  that  he  would  be 
liable  if  "  those  habits  were  continued  afterwards  and  were  continued 
afterwards  on  account  of  the  acts  of  the  defendant  in  selling  him  liquor 
in  whole  or  in  part."  If  this  had  stood  alone  the  charge  would  have 
been  erroneous  for  the  same  reason  that  the  charge  in  Bryant  v.  Tidge- 
well,  133  Mass.  86,  was  held  to  be  wrong.  But  this  was  an  inaccurate 
statement  used  by  the  judge  in  pointing  out  that  the  defendant  was 
not  liable  if  the  husband  had  become  addicted  to  drunkenness  before 
any  liquor  was  sold  to  him  by  the  defendant.  When  the  judge  later 
on  in  his  charge  instructed  the  jury  as  to  what  they  must  find  to  bring 
in  a  verdict  for  the  plaintiff,  this  inaccuracy  was  cured.  They  were 
then  told  in  substance  that  they  must  find  that  the  assault  was  caused 
by  his  being  in  a  state  of  habitual  drunkenness  at  the  time,  and  that 
this  state  of  habitual  drunkenness  had  been  caused  in  whole  or  in  part 
by  liquor  sold  by  the  defendant. 

3.  The  eleventh  request  could  not  be  given.  The  pain  in  labor  of 
a  woman,  who  by  reason  of  an  assault  and  battery  upon  her  brings  forth 
a  dead  child  when  she  is  seven  months  gone  in  pregnancy,  may  be 
found  to  be  greater  than  the  pain  in  labor  of  a  woman  "who  remem- 
bereth  no  more  her  anguish  for  joy  that  a  man  is  born  into  the  world." 

Exceptions  overruled. 


SECTION    IV. 

Workmen's  Compensation  Acts. 

BLAKE  V.   HEAD. 

CouET  OF  Appeal,  1912. 

[Reported  5B.W.  C.  C.  303.] 

Cozens-Hardy,  M.  R.  The  facts  were  that  the  boy  went  into  the 
service  of  Head  as  an  errand  boy  and  was  told  by  his  father  that  Head 
had  been  in  an  asylum,  and  that  he  was  to  be  a  good  boy  and  not  make 
his  employer  annoyed.  When  the  boy  was  doing  some  work  under  the 
direction  of  Mrs.  Head,  he  was  attacked  by  Head  with  a  chopper  and 
was  severely  injured,  sustaining  a  fractured  skull.  It  was  a  lament- 
able affair.  Head  must  be  taken  to  be  a  sane  person,  as  he  had  been 
discharged  shortly  before  from  an  asylum.  It  was  said  the  boy  could 
claim  compensation  because  this  accident  arose  out  of  and  in  the  course 
of  his  employment.  Personally,  I  do  not  think  this  was  an  "accident" 
at  all.  I  think  it  was  an  intentional  felonious  act,  and  the  injury  cer- 
tainly did  not  arise  out  of  the  employment.  If  the  applicant  had  been 
an  attendant  in  a  lunatic  asylum,  and  had  been  attacked  by  one  of  the 


378  BUTLER    V.   BURTON-ON-TRENT    UNION.  [cHAP.  IV, 

patients,  there  would  have  been  very  good  ground  for  saying  that  there 
was  an  accident  arising  out  of  his  employment  as  being  a  risk  inci- 
dental to  the  employment.  But  that  is  not  the  case  here.  I  cannot 
think  why  the  unfortunate  boy  did  not  bring  an  action  for  assault. 
I  do  not  think  it  was  an  accident,  or  that  the  injury  arose  out  of  and 
in  the  course  of  employment. 

Fletcher  Moulton,  L.  J.  I  am  extremely  sorry  for  the  boy; 
but  I  agree  that  the  appeal  must  be  dismissed. 

Buckley,  L.  J.  A  felonious  act  done  by  the  employer  cannot  by  any 
possible  straining  of  language  be  called  an  accident  arising  out  of  and 
in  the  course  of  the  emplojTnent.    I  agree  in  thinking  this  appeal  fails. 

Appeal-  dismissed. 


BUTLER  V.  BURTON-ON-TRENT  UNION. 

Court  of  Appeal,  1912. 

[Reported  5  B.  W.  C.  C.  355.] 

Cozens-Hardy,  M.  R.  This  is  an  appeal  from  Judge  Lindley, 
who  has  given  us  an  elaborate  judgment.  The  facts  are  plain  and 
not  in  dispute.  The  deceased  man  was  master  of  a  workliouse.  He 
was  on  duty  continuously  until  ten  o'clock  at  night,  but  he  hg-d  no 
active  duties  at  thp  time  in  question.  It  was  a  summer  evening.  He 
was  sitting  smoking  at  the  top  of  some  stairs  leading  up  to  that  part 
of  the  workhouse  where  liis  own  private  rooms  were.  It  is  not  sug- 
gested that  there  was  anything  peculiar  in  these  stairs.  The  labor- 
master  happened  to  pass  that  way,  and  he  was  having  a  talk  with  him 
about  workhouse  matters.  Unfortunately,  the  master  of  the  work- 
house had  tubercular  trouble.  A  fit  of  coughing  came  on,  and  made 
him  giddy.  He  turned  round,  and  fell  down  the  steps,  and  it  was  found 
that  one  of  his  ribs  was  broken,  and  he  died  of  pneumonia  some  days 
after.  The  judge  has  found  this  was  an  accident  in  the  course  of  the 
employment.  The  then  question  is.  Did  it  arise  out  of  the  employment? 
Mr.  Parfitt  says  it  "arose  out  of"  because  it  took  place  on  premises 
where  he  was  in  fact  engaged.  If  that  view  is  right,  it  makes  "  in  the 
course  of"  the  sole  test.  It  has  been  decided  that  an  accident  "arising 
out  of"  means  some  risk  reasonably  incidental  to  the  employment; 
that  the  man  is  more  exposed  to  the  particular  risk  than  other  persons 
of  the  community.  Mr.  Parfitt  admits  that  if  the  master  had  been 
engaged  in  his  office  and  this  fit  of  coughing  liad  come  on,  the  accident 
Avould  he  in  no  sense  one  arising  out  of  the  employment.  There  is 
nothing  peculiar  in  the  employment  which  renders  the  risk  greater 
than  that  to  wliich  ordinary  persons  are  exposed.  It  is  not  as  though 
the  task  was  likely  to  render  the  cough  more  frequent  and  more  dan- 


SECT.  IV.]  EVEKITT  V.    EASTAFF  &   CO.  379 

gerous.  I  cannot  imagine  a  quieter  occupation  than  this  man  had. 
In  these  circumstances,  I  think  we  should  be  extending  the  pro\asions 
of  this  Act  beyond  all  reason,  beyond  all  principle,  beyond  all  authority, 
if  we  held  that  this  accident  arose  out  of  the  employment. 

Fletcher  Moulton,  L.  J.,  agreed. 

Buckley,  L.  J.  The  place  was  not  a  dangerous  place;  the  man  was 
neither  more  nor  less  liable  to  fall  because  he  was  a  workliouse  master. 
These  considerations  are  sufficient.  The  accident  did  not  arise  out  of 
the  employment  in  the  sense  that  it  was  due  to  the  nature  of  the  em- 
ployment, or  to  anything  to  which  the  employment  required  him  to 
expose  himself. 

Appeal  allowed. 


EVERITT  V.   EASTAFF  &  CO. 

Court  of  Appeal,  1913. 

[Reported  6  B.  W.  C.  C.  184.] 

Cozens-Hardt,  M.  R.  This  case  has  been  most  strenuously  argued 
by  Mr.  Lort-Williams  on  behalf  of  the  dependents  of  the  dead  man. 
He  certainly  has  said  all  that  possibly  could  be  said  for  his  clients,  but, 
nevertheless,  I  cannot  bring  myself  to  agree  with  his  contention,  for 
I  do  not  think  there  is  any  substance  in  the  appeal.  The  deceased  man 
was  a  carter,  and  the  facts  as  found  by  the  learned  judge  were  in  sub- 
stance these:  The  man  was  employed  on  the  day  of  the  accident  to 
take  a  load  of  sand  in  his  cart  from  the  Midland  Railway  depot  — 
which  we  are  told  is  near  the  Midland  station  at  Luton  —  to  a  place 
in  the  Selbourne  Road,  some  little  distance  away.  It  was  part  of  his 
duty  after  he  had  got  rid  of  his  load  to  take  his  horse  and  cart  back  to 
the  stables  at  twelve  o'clock,  which  was  the  men's  dinner  hour.  He  had 
been  with  his  load  to  Selbourne  Road,  but  instead  of  going  back  to  the 
stables  by  the  way  he  had  come,  which  was  the  nearest  and  reasonable 
and  natural  route  for  him  to  take,  he  went  where  he  had  no  business 
to  go,  by  a  route  which  was  a  little  way  farther  round,  but  which 
took  him  back  to  the  stables,  passing  by  the  Great  Northern  Railway 
station.  By  this  route  he  passed  a  public-house  called  the  "Fox  Inn," 
where  he  stopped.  We  do  not  know  exactly  wiien  he  got  there.  One 
witness  said  he  saw  the  cart  standing  there  at  11.30,  and  another  that 
he  noticed  the  cart  there  when  he  passed  at  11.40;  the  publican  said 
that  about  twelve  o'clock  the  man  came  into  the  bar  and  had  one  glass 
of  ale,  and  that  he  noticed  that  the  horse  and  cart  were  standing  out- 
side on  the  draw-up.  It  was  argued  by  Mr.  Lort-Williams  that  we 
must  not  infer  from  this  evidence  that  the  man  was  there  drinking 
at  the  public-house  all  the  time.     And  so  far,  I  agree  with  Inm.     But 


380  EVEKITT    V.    EASTAFF    &    CO.  [CIIAP.  IV. 


• 


the  man  seems,  however,  to  have  been  loitering  over  his  work  all  that 
day,  for  he  did  only  two  instead  of  four  journeys  that  morning,  accord- 
ing to  his  day-sheet.  However  that  may  be,  we  know  this,  that  when 
he  came  out  of  the  public-house,  after  getting  his  drink,  he  got  up  on  to 
the  cart  and  something  startled  the  horse;  he  began  to  trot,  and  then 
ran  away  towards  his  stable.  The  man,  who  had  the  reins  in  his  hands, 
was  thrown  out  of  the  cart  and  killed..  The  judge  found  that  the 
route  which  tlie  man  took  back  from  Selbourne  Road  was  not  the 
nearest  way  the  man  could  take  to  get  back  to  the  stables,  and  was  not 
the  ordinary  or  usual  route  there.  And  he  held  "  that  the  accident  did 
not  arise  out  of  and  in  the  course  of  the  man's  employment.  That  that 
employment  was  to  cart  as  alleged;  that  the  deceased  went  to  the  Fox 
Inn  for  his  own  purposes;  that  the  accident  happened  on  a  road  a  few 
yards  from  the  Fox  Inn,  where  his  employment  did  not  reasonably 
or  naturally  take  him  with  his  cart,  and  upon  the  e\ndence  I  so  decide; 
nor  do  I  think  that  the  getting  into  the  cart  again  after  the  Fox  Inn 
visit  continued  his  employment  (as  Mr.  Lort-Williams  contended), 
so  as  to  make  the  respondents  hable." 

Now,  the  very  ingenious  argument  addressed  to  us  on  behalf  of  the 
appellant  was,  in  effect,  this:  The  deceased  man  was  a  carter,  and 
therefore  his  duty  was  to  take  care  of  his  master's  horse  and  cart. 
However  long,  therefore,  he  may  have  been  getting  back,  if  he  deviated 
from  the  ordinary  route  on  an  excursion  for  his  own  purpose  —  if , 
for  example,  to  use  the  illustration  put  by  Buckley,  L.  J.,  to  Mr.  Lort- 
Williams  during  the  argument,  the  man  had  gone  off  to  see  a  football 
niatch  —  so  long  as  he  took  the  horse  and  cart  with  him,  any  accident 
which  happened  to  him  while  dri\4ng  the  horse  back  to  the  yard  would 
be  an  accident  arising  out  of  and  in  the  course  of  his  employment.  It 
was  argued  that  taking  the  horse  back  to  the  yard  was  part  of  his 
duty,  and  the  accident  happened  in  the  performance  of  that  duty, 
and'  therefore  the  employers  were  liable.  I  cannot  in  the  least  accept 
that  argument  as  sound.  I  cannot  think  that  a  man  is  within  the  pro- 
tection of  the  Act  when  making  an  excursion  solely  for  his  own  pleas- 
ure. I  think  it  is  immaterial  to  consider  whether  he  remained  at  the 
Fox  Inn  for  twenty  minutes  or  half  an  hour.  It  did  not  matter  in  the 
least.  The  man  for  his  own  purpose  had  chosen  to  take  a  route  home 
which  was  unauthorized,  and  that  prevented  the  accident  from  arising 
out  of  and  in  the  course  of  the  man's  employment  witliin  the  meaning 

of  the  Act. 

Buckley  and  Hamilton,  L.  JJ.,  concurred. 

Appeal  dismissed. 


SECT.  IV.]  M'LAUCHLAN    V.  ANDEKSON.  381 


M'LAUCHLAN  v.   ANDERSON. 
Court  of  Session,  Scotland,  1911. 

[Reported  4  B.  W.  C.  C.  376.] 

The  facts  in  this  case  are  as  follows:  The  deceased  was  engaged  as 
a  laborer  in  connection  with  loading  at  various  quarries  wagons 
which  were  afterwards  hauled  by  a  traction  engine  over  the  roads  of 
Banffshire  to  Portsoy.  The  deceased's  main  duties  were  to  help  at 
the  loading  and  unloading  and  to  accompany  the  wagons  on  their 
journeys.  On  the  occasion  of  his  death  he  was  sitting  on  one  of  the 
wagons  which  was  being  hauled  by  the  engine  in  the  prosecution  of 
one  of  the  intermediate  journeys  from  one  quarry  to  another.  While 
sitting  on  the  wagon  he  dropped  his  pipe  and  got  down  to  recover  it; 
in  so  doing  he  stumbled  and  fell,  and  was  run  over  by  the  wagon. 
The  arbitrator  found  as  a  fact  that  "the  deceased  Peter  M'Lauchlan 
attempted  to  get  down  from  the  wagon,  not  for  any  object  connected 
with  his  employment  with  the  respondent,  but  for  his  own  purpose," 
and  proceeding  upon  that  found  in  law  that  the  dependent  was  not 
entitled  to  compensation  in  respect  that  the  accident  was  not  an 
accident  arising  out  of  his  emplo^Tiient  in  the  sense  of  the  Workman's 
Compensation  Act,  1906,  s.  1  (1). 

The  Lord  President  (after  stating  the  facts  as  above).  The  ques- 
tion before  your  Lordships  is  whether  the  finding  in  law  of  the  arbitrator 
can  be  supported,  in  \new  of  the  various  facts  the  arbitrator  found  to 
be  proved,  wliich  I  have  detailed.  I  am  of  opinion  that  the  finding  can- 
not be  supported.  I  think  the  fallacy  that  has  led  the  learned  arbitra- 
tor astray  is  cormected  witli  the  true  meaning  of  the  words  "his  own 
purpose."  In  one  sense  anything  a  man  does  in  connection  with  his 
own  body  is  done  for  his  own  purpose  —  eating  and  drinking  are  illus- 
trations, but  these  are  none  the  less  things  a  workman  is  perfectly 
entitled  to  do  in  the  course  of  his  employment.  The  Lord  Chancellor 
(Lord  Loreburn)  in  the  course  of  his  opinion  in  the  case  of  Moore  v. 
Manchester  Liners,  Limited,  [1910]  A.  C.  498,  at  p.  500,  said  this: 
"  I  think  an  accident  befalls  a  '  man  in  the  course '  of  his  employment 
if  it  occurs  while  he  is  doing  what  a  man  so  employed  may  reasonably 
do  within  a  time  during  which  he  is  employed,  and  at  a  place  where  he 
may  reasonably  be  during  that  time  to  do  that  thing."  Now  this 
man's  operation  of  getting  down  from  the  wagon  to  recover  his  pipe 
seems  to  me  to  satisfy  all  those  conditions.  Taking  tliem  in  tlieir  in- 
verse order,  he  had  a  right  to  be  at  the  place,  riding  on  or  walking  be- 
side the  wagons;  he  was  within  the  time  during  which  he  was  employed, 
because  the  accident  happened  during  the  actual  period  of  transit; 
and  he  was  doing  a  thing  which  a  man  while  working  may  reasonably 


382  PLUMB    V.    (JOBDEN    FLOUK    MILLS    CO.,  LTD.  [CHAP.  IV. 

do  —  a  workman  of  his  sort  may  reasonably  smoke,  he  may  reasonably 
drop  his  pipe,  and  he  may  reasonably  pick  it  up  again. 

I  think  this  case  is  in  thorough  contrast  to  the  cases  which  were  cited 
to  your  Lordships  of  the  engine-driver  and  the  ticket-collector.  Each 
of  those  men  was  doing  something  which  was  not  incidental  to  his 
ordinary  work,  but  took  him  away  from  his  work  for  a  purpose  purely 
his  own  —  the  engine-driver  went  to  fetch  a  book,  and  the  ticket- 
collector  to  talk  to  a  lady  passenger. 

A  good  deal  has  been  said  about  the  difference  between  an  accident 
arising  "out  of"  and  one  arising  "in  the  course  of"  the  employment 
No  doubt  in  the  earlier  cases  under  the  Act  there  was  a  certain  amount 
of  difficulty  in  the  distinction,  but  my  view  on  the  matter  is  quite 
determined.  I  think  it  is  impossible  to  have  an  accident  arising  out 
of,  which  is  not  also  in  the  course  of  the  employment,  but  the  converse 
of  this  is  quite  possible,  as,  for  instance,  if  a  workman  were  shot  by  a 
lunatic,  or  struck  by  lightning,  while  at  the  moment  engaged  in  his 
work.  In  a  great  many  cases,  however,  the  two  phrases  do  not  admit 
of  separate  consideration,  and  the  present  is  one  of  those  cases.  If 
this  accident  took  place  in  the  course  of  the  workman's  employment,  it 
also  indubitably  arose  out  of  that  employment;  if  not,  not.  On  the 
whole  matter  I  propose  that  we  should  recall  the  finding  of  the  arbitra- 
tor and  find  the  widow  entitled  to  compensation.  .  The  other  Lords 
concurred. 

Appeal  allowed. 


PLUMB  v..  COBDEN  FLOUR  MILLS  CO.,  LTD. 
House  of  Lords,  1913. 

[Reported  [1914]  A.  C.  62.] 

Viscount  Haldane,  L.  C.  My  Lords,  in  this  case  I  have  had  the 
advantage  of  reading  the  judgment  prepared  by  my  noble  and  learned 
friend  Lord  Dunedin,  and  I  entirely  concur  in  it. 

Lord  Kinnear  desires  me  to  express  his  concurrence  also  in  the 
judgment  of  my  noble  and  learned  friend. 

Lord  Dunedin.  My  Lords,  I  have  not  the  slightest  doubt  as  to 
the  soundness  of  the  judgment  appealed  from.  As,  hoVever,  we  had 
the  benefit  of  a  very  able  argument  and  a  copious  citation  of  authorities, 
it  may  be  of  use  to  formulate  the  conclusions  at  which  I  have  arrived. 

The  facts  of  the  case  are  simple.  The  appellant  was  a  foreman  worker 
in  the  employment  of  the  respondents,  and  his  duties  on  the  day  on 
which  he  was  injured  consisted  in  stacking  bundles  of  sacks  in  a  room 
in  the  responrlents'  premises.  The  work  was  done  by  hand.  In  the 
room  in  which  this  was  being  done  there  ran  along. the  ceiling  a  shaft 


II 


SECT.    IV.]  PLUMB    V.    COBDEN    FLOUE    MILLS    CO.,  LTD.  383 

which  transmitted  power  to  machines  in  other  rooms,  but  there  were 
no  pulleys  on  the  shaft  in  this  room,  and  it  was  not  used  in  connection 
with  any  machine  in  this  room.  The  stack  had  arrived  at  the  height 
of  about  seven  feet  and  the  bundles  could  no  longer  be  thrown  up  from 
the  bottom.  The  appellant,  who  was  on  the  top  of  the  stack,  then 
impro\ased  a  method  of  getting  up  the  sacks.  He  put  a  rope  round 
the  revolving  shafting,  attached  one  end  to  the  bundle,  and  sufficient 
tension  being  put  on  the  other  end  of  the  rope  to  ensure  friction,  the 
sack  was  drawn  up  as  by  a  crane.  A  bundle  of  sacks  was  drawn  too 
far  and  stuck  between  the  shafting  and  the  ceiling.  The  appellant,  to 
free  the  bundle,  cut  the  rope.  The  bundle  fell,  and  falling  on  the  bundle 
on  which  the  appellant  was  standing  caused  him  to  lose  his  balance. 
In  his  effort  to  recover  equilibrium  one  arm  got  entangled  with  the  rope 
which  was  round  the  shafting,  he  was  pulled  over  the  shafting,  and 
severely  injured. 

The  question  for  decision  is.  Did  the  accident  arise  out  of  his  em- 
ployment? 

The  Court  of  Appeal  held  that  it  did  not,  and  I  agree  with  them. 

It  is  well,  I  think,  in  considering  the  cases,  which  are  numerous,  to 
keep  steadily  in  mind  that  the  question  to  be  an.swered  is  always  the 
question  arising  upon  the  very  words  of  the  statute.  It  is  often  useful 
in  stri\ing  to  test  the  fact  of  a  particular  case  to  express  the  test  in 
various  phrases.  But  such  phrases  are  merely  aids  to  solving  the 
original  question,  and  must  not  be  allowed  to  dislodge  the  original 
words.  Most  of  the  erroneous  arguments  which  are  put  before  the 
courts  in -this  branch  of  the  law  will  be  found  to  depend  on  disregard- 
ing this  salutary  rule.  A  test  embodied  in  a  certain  phrase  is  put  for- 
ward, and  only  put  forward,  by  a  judge  in  considering  the  facts  of  the 
case  before  him.  That  phrase  is  seized  on  and  treated  as  if  it  afforded 
a  conclusive  test  for  all  circumstances,  with  the  result  that  a  certain 
conclusion  is  plausibly  represented  as  resting  upon  authority,  which 
would  have  little  chance  of  being  accepted  if  tried  by  the  words  of  the 
statute  itself. 

Under  this  reservation,  I  propose  shortly  to  examine  some  of  the 
tests  which  have  been  found  useful  in  the  various  cases  which  have 
occurred  where  the  point  was  whether  or  not  the  accident  arose  out 
of  the  employment. 

The  first  and  most  useful  is  contained  in  the  expression  "scope"  or 
"sphere  of  employment."  The  expression  was  used  in  an  early  case, 
the  case  of  Whitehead  v.  Reader,  [1901]  2  K.  B.  48,  by  Collins,  L.  J., 
who  pointed  out  that  the  question  of  whether  a  servant  had  violated 
an  order  was  not  conclusive  of  whether  an  accident  so  caused  did  or 
did  not  arise  out  of  the  employment  and  put  as  the  test.  Did  the 
order  which  was  disobeyed  limit  the  sphere  of  the  employment,  or  was 
it  merely  a  direction  not  to  do  certain  things,  or  to  do  them  in  a  certain 
way  within  the  sphere  of  the  employment? 


384  PLUMB  V.    COBDEN  FLOUR  MILLS  CO.,  LTD.    [CHAP.  IV. 

In  the  case  of  Conway  v.  Pumpherston  Oil  Co.,  1911  S.  C.  660,  in 
the  Court  of  Session,  I  adopted  the  phrase  of  ColHns,  L.  J.,  and  pointed 
out  that  there  were  two  sorts  of  ways  of  frequent  occurrence  in  which 
a  workman  might  go  outside  the  sphere  of  his  employment  —  the  first, 
when  he  did  work  which  he  was  not  engaged  to  perform,  and  the 
second,  when  he  went  into  a  territory  with  which  he  had  nothing  to 
do.  This  case  was  approved  and  followed  by  the  Court  of  Appeal  in 
Harding  v.  Brynddu  Colliery  Co.,  [1911]  2  K.  B.  747.  The  expression 
has  been  used  in  many  other  cases  which  it  would  be  tedious  and  un- 
necessary to  cite. 

I  am  of  opinion  that  this  test  is  both  sound  and  convenient,  but  it 
is  not  exhaustive,  and  it  is  not  the  most  convenient  for  every  state- 
ment of  facts.  Taken  as  it  is,  there  may,  and  often  will,  be  circum- 
stances in  which  the  application  may  be  difficult  and  opinions  may 
differ. 

I  pause  here  to  notice  an  ingenious  argument  proposed  by  Mr. 
Davenport,  founded  on  the  cases  I  have  cited.  Founding  on  the  cases 
of  Conway,  [1901]  2  K.  B.  48,  and  Harding,  [1911]  2  K.  B.  747,  he 
said :  If  this  man  had  been  told  not  to  touch  this  shaft  he  would 
have  received  compensation,  for  he  was  doing  his  master's  work,  and 
it  would  have  been  merely  disobedience.  Why  should  he  be  worse 
off  because  he  was  told  nothing  about  the  shaft?  The  fallacy  of  this 
consists  in  not  adverting  to  the  fact  that  there  are  prohibitions  which 
limit  the  sphere  of  employment,  and  prohibitions  which  only  deal  with 
conduct  within  the  sphere  of  employment.  A  transgression  of  a  pro- 
hibition of  the  latter  class  leaves  the  sphere  of  employment  where  it 
was,  and  consequently  will  not  prevent  recovery  of  compensation.  A 
transgression  of  the  former  class  carries  with  it  the  result  that  the  man 
has  gone  outside  the  sphere. 

In  the  case  of  Barnes  r.  Nunnery  Colliery  Co.,  (1910)  4  B.  W.  C.  C. 
43;  [1912];  A.  C.  44,  Lord  Moulton  put  it  thus:  "The  boy  was  only 
guilty  of  disobedience.  Was  this  out  of  the  scope  of  his  emplojonent, 
or  only  a  piece  of  misconduct  in  his  employment?"  Though  Lord 
Moulton  arrived  at  a  different  result  on  the  facts  from  that  of  the 
majority  of  the  Court  of  Appeal,  and  that  of  this  House,  yet  no  fault 
is  to  be  found  with  the  question  as  put,  and  in  this  House  Lord  Lore- 
burn,  L.  C,  said  the  same  thing  in  other  words:  "Nor  can  you  deny 
him  compensation  on  the  ground  only  that  he  was  injured  through 
breaking  rules.  But  if  the  thing  he  does  imprudently  or  disobediently 
is  different  in  kind  from  anything  he  was  required  or  expected  to  do 
and  also  is  put  outside  the  range  of  his  service  by  a  genuine  pro- 
hibition, then  I  should  say  that  the  accidental  injury  did  not  arise 
out  of  his  employment."  The  Lord  Chancellor  there  put  the  test 
cumulatively,  because  that  fitted  the  facts  of  the  case  in  which  boys 
in  a  mine  rode  in  tubs,  a  thing  they  were  not  employed  to  do,  and 
I.  which  they  had  been  ex-pressly  told  not  to  do.    But  I  imagine  the  propo- 


SECT.  IV.]  PLUMB    V.    COBDEN    FLOUR    MILLS    CO.,  LTD.  385 

sition  is  equally  true  if  he  had  expressed  it  disjunctively  and  used  the 
word  "or"  instead  of  "also." 

In  the  eases  in  which  there  is  no  prohibition  to  deal  with,  the  sphere 
must  be  determined  upon  a  general  view  of  the  nature  of  the  employ- 
ment and  its  duties.  If  the  workman  was  doing  those  duties  he  was 
within,  if  not  he  was  without,  or,  to  use  my  own  words  in  the  case  of 
Kerr  v.  Wilham  Baird  &  Co.,  1911  S.  C.  701,  an  accident  does  not 
arise  "out  of  the  employment"  if  at  the  time  the  workman  is  arrogat- 
ing to  himself  duties  which  he  was  neither  engaged  nor  entitled  to 
perform. 

As  I  have  already  said,  however,  the  question  of  within  or  without  the 
sphere  is  not  the  only  convenient  test.  There  are  others  which  are 
more  directly  useful  to  certain  classes  of  circumstances. 

One  of  these  has  been  frequently  phrased  interrogatively.  Was 
the  risk  one  reasonably  incidental  to  the  employment?  And  the 
question  may  be  further  amplified  according  as  we  consider  what  the 
workman  must  prove  to  show  that  a  risk  was  an  employment  risk,  or 
what  the  employer  must  prove  to  show  it  was  not  an  employment  risk. 

As  regards  the  first  branch,  I  think  the  point  is  very  accurately 
expressed  by  the  Master  of  the  Rolls  in  the  case  of  Craske  v.  Wigan, 
[1909]  2  K.  B.  635,  where  he  says:  "  It  is  not  enough  for  the  applicant 
to  sa^'  'The  accident  would  not  have  happened  if  I  had  not  been 
engaged  in  that  employment  or  if  I  had  not  been  in  that  particular 
place.'  He  must  go  further  and  must  say,  'The  accident  arose  because 
of  something  I  was  doing  in  the  course  of  my  employment  or  because 
I  was  exposed  by  the  nature  of  my  employment  to  some  peculiar 
danger.'" 

As  regards  the  second  branch,  a  risk  is  not  incidental  to  the  em- 
ployment when  either  it  is  not  due  to  the  nature  of  the  employment 
or  when  it  is  an  added  peril  due  to  the  conduct  of  the  servant  himself. 
Illustrations  of  the  first  proposition  will  be  found  in  all  the  cases  where 
the  risk  has  been  found  to  be  a  risk  common  to  all  mankind,  and  not 
accentuated  by  the  incidents  of  the  employment.  In  application  to 
facts  the  di^■i(ling  line  is  sometimes  very  nearly  approached,  but  I 
think  that  in  all  the  cases  the  principle  to  be  applied  has  been  rightly 
stated.  The  cases  themselves  are  too  numerous  to  cite,  but  I  may 
mention  as  illustrations  the  two  lightning  cases  of  Kelly  v.  Kerry 
County  Council,  (1908)  42  I.  L.  T.  R.  23,  and  Andrew  tJ.  Failsworth 
Industrial  Society,  [1904]  2  K.  B.  32,  where  on  the  facts  the  stroke 
)  of  lightning  was  held,  in  the  Irish  case,  to  be  a  common  risk  of  all 
mankind;  in  the  English  case,  a  risk  to  which,  by  the  conditions  of 
employment,  the  workman  was  specially  exposed.  Both  these  cases, 
in  my  humble  judgment,  were  rightly  decided. 

An  illustration  of  the  second  proposition  will  be  found  in  the  case 
already  cited  of  Barnes  v.  Nunnery  Colliery  Co.,  [1912]  A.  C.  44,  at 
p.  50,  where  Lord  Atkinson  said:  "The  unfortunate  deceased  in  this 


38G  PLUMB    V.    COBDEN    FLOUR    MILLS    CO.,  LTD.        [CHAP.  IV. 

case  lost  his  life  through  the  new  and  added  peril  to  which  by  his  own 
conduct  he  exposed  himself,  not  through  any  peril  which  his  contract 
of  ser\'ice,  directly  or  indirectly,  involved  or  at  all  obliged  him  to  en- 
counter."     Lord  Atkinson  added  the  words,  "  It  was  not,  therefore, 
reasonably  incidental  to  his  employment.     That  is  the  crucial  test." 
In  the  case  of  Watkins  r.  Guest,  Keen  &  Nettlefolds,  5  B.  W.  C.  C. 
307,  Lord  Moulton  criticized  this  sentence  as  cutting  out  the  sub- 
section as  to  serious  and  wilful  misconduct.    With  great  deference  to 
my  noble  and  learned  friend,  I  think  he  was  forgetting  that  Lord 
Atkinson  was  only  applying  a  test,  and  not  substituting  it  for  the  words 
of  the  Act.     I  cannot  see  that  the  serious  and  wilful  misconduct  section 
really  introduces  any  difficulty.     Reverting  to  the  words  of  the  Act, 
you  have  first  to  show  that  the  accident  arises  out  of  the  employment. 
Then  in  the  older  Act  came  the  rider  that  even  when  that  was  so  the 
workman  still  could  not  recover  if  the  accident  was  due  to  the  serious 
and  wilful  misconduct  of  the  workman  himself  —  a  rider  limited  in  the 
later  Act  to  cases  where  the  injury  did  not  result  in  death  or  serious 
and  permanent  disablement.     But  the  very  fact  that  it  is  a  rider 
postulates  that  the  accident  is  of  the  class  which  arises  out  of  the 
employment.     A  man  may  commit  such  a  piece  of  serious  and  wilful 
misconduct  as  will  make  what  he  has  done  not  within  the  sphere  of 
his  employment.    But  if  death  ensues  and  his  dependents  fail  to  get 
compensation  it  will  not  be  because  he  was  guilty  of  serious  and  wilful 
misconduct,  but  because  the  thing  done,  irrespective  of  misconduct, 
was  a  thing  outside  the  scope  of  his  employment.    I  have  forborne  to 
comment  on  the  particular  application  to  the  facts  of  each  case  of  the 
principles  laid  down  in  them.     But,  in  view  of  what  has  been  said, 
I  think  I  must  add  that  in  my  view  the  judgment  of  Buckley,  L.  J.,  who 
dissented  in  Watkins'  case,  5  B.  W.  C.  C.  307,  was   more  in  accord- 
ance with   what  had  been  laid  down  in    this  House  in  the  case  of 
Barnes  v.  Nunnery  Colliery  Co.,  [1912]  A.  C.  44,  than  the  judgment  of 
the  majority. 

Tried  by  either  of  the  two  tests  I  have  examined,  the  appellant  in 
this  case  seems  to  me  equally  to  fail.  But  he  does  fail,  not  because  he 
was  acting  outside  the  sphere  of  his  employment,  nor  because  by  his 
conduct  he  brought  on  himself  a  new  and  added  peril,  but  because  he 
has  failed  to  show  any  circumstances  which  could  justify  a  finding  that 
the  accident  to  him  arose  "out  of  his  employment." 

Lord  Atkinson.    My  Lords,  I  concur. 

Order  of  the  Court  of  Appeal  affirmed  and  appeal  dismissed. 


SECT.  IV.]      TRIM   JOINT    DISTRICT    SCHOOL    BOARD    V.    KELLY.  387 


TRIM   JOINT   DISTRICT    SCHOOL  BOARD   MANAGEMENT 

V.   KELLY. 

House  of  Lords,  1914. 

[Reported  30  Times  L.  R.  453.] 

Appeal,  from  the  decision  of  the  Court  of  Appeal  in  Ireland. 

The  respondent  claimed  compensation  as  sole  dependent  for  the 
death  of  her  son.  The  son  was  employed  by  the  appellants  as  an 
assistant  master  in  the  Trim  District  School,  which  was  established  as 
a  school  for  training  children  of  the  Meath  and  other  union  workhouses 
in  industrial  pursuits.  It  was  his  duty  to  superintend  the  boys  in 
school  and  in  the  playground.  On  February  12,  1912,  the  boys,  who 
were  angry  with  the  master  because  he  had  prevented  them  from 
playing  hockey  in  the  school  yard  and  because  he  had  caught  one  of 
them  stealing,  planned  an  attack  on  him.  They  collected  in  a  shed 
attached  to  the  school,  armed  with  hockey  sticks,  sweeping  brushes, 
and  scrubs  —  the  last  weapon  consisting  of  a  heavy  block  of  wood 
attached  to  a  brush-handle.  The  master  came  down  from  the  school 
and  walked  along  the  shed.  As  he  turned  to  come  back  one  of  the  boys 
struck  him  on  the  head  with  a  scrub  and  another  struck  him  with  a 
sweeping  brush,  inflicting  such  severe  injuries  that  he  died  on  the  same 
day. 

The  County  Court  Judge  held  that  the  assault  was  an  accident 
arising  out  of  and  in  the  course  of  the  employment  of  the  master,  and 
that  the  accident  caused  his  death.  He  therefore  made  an  award  in 
favor  of  the  respondent.  The  Court  of  Appeal  (the  Lord  Chancellor 
of  Ireland,  Lord  Justice  Holmes,  and  Lord  Justice  Cherry)  affirmed  the 
decision  of  the  County  Court  Judge. 

Lord  Haldane,  L.  C,  said  that  the  appeal  raised  a  question  of 
considerable  importance  as  to  the  interpretation  of  the  expression 
"Accident  arising  out  of  and  in  the  course  of  the  employment"  in  the 
Workmen's  Compensation  act,  1906.  The  circumstances  in  which  the 
question  had  arisen  were  shortly  as  follows.  The  respondent  was  the 
mother  of  one  John  Kelly,  who  was  an  assistant  teacher  in  the  indus- 
trial school  at  Trim,  and  whose  death  was  caused  by  injury  rccciAcd 
by  him  while  superintending  the  scholars  under  his  charge.  It  was  not 
in  dispute  that  the  respondent  was  partly  dependent  on  her  son,  or 
that  if  she  was  entitled  to  compensation  for  his  death  the  amount 
awarded,  £100,  was  a  proper  amount.  The  proceedings  out  of  which 
the  appeal  arose  were  taken  under  the  Act  referred  to,  and  assiuned  the 
form  of  an  application  for  arbitration,  which  was  heard  by  the  County 
Court  Judge  of  the  county  of  Meath. 

The  deceased  John  Kelly,  who  was  employed  by  the  appellants,  was 


388  TRIM   JOINT   DISTRICT    SCHOOL   BOARD    V.    KELLY,      [CHAP.  IV. 

on  February  12,  1912,  superintending  the  boys  in  the  school  at  exercise 
in  the  school  yard  when  he  was  assaulted  by  several  of  them,  and  was 
struck  with  heavy  wooden  mallets.  He  died  as  the  result  of  his  in- 
juries. The  assault  was  premeditated  and  the  outcome  of  a  con- 
spiracy among  some  of  the  boys  to  injure  Kelly,  who  had  punished  or 
threatened  to  punish  them,  and  who  on  the  occasion  in  question  was 
remonstrating  with  them. 

After  referring  to  the  findings  of  the  County  Court  Judge,  the  Lord 
Chancellor  said  that  he  wished  before  alluding  to  the  authorities  on 
the  point  to  look  at  the  question  as  if  it  were  a  new  one.  It  seemed  to 
him  important  to  bear  in  mind  that  "  accident "  was  a  word  the  mean- 
ing of  which  might  vary  according  as  the  context  varied.  In  criminal 
jurisprudence  crime  and  accident  were  sharply  di\'ided  by  the  presence 
or  absence  of  mens  rea.  But  in  contract  such  as  those  of  marine  insur- 
ance and  of  carriage  by  sea,  that  was  not  so.  In  such  cases  the  maxim 
In  jure  non  remota  causa  sed  proxima  spccfatur  was  applied.  He  need 
only  refer  to  what  was  laid  down  by  Lord  Herschell  and  Lord  Bramwell, 
when  overruling  the  notion  that  a  peril  or  an  accident  in  such  cases 
was  what  must  happen  without  the  fault  of  anybody,  in  Wilson  v. 
The  Owners  of  the  Xantho  (3  The  Times  L.  R.  766;  12  App.  Cas. 
503). 

It  was  therefore  necessary,  in  endeavoring  to  arrive  at  what  was 
meant  by  "accident,"  to  consider  the  context  in  which  the  word  was 
introduced.  The  scope  and  purpose  of  that  context  might  make  the 
whole  difference. 

After  alluding  to  the  Workmen's  Compensation  Act,  1906,  and  ob- 
serving that  its  principle  was  to  impose  on  the  employer  a  general 
liability  to  pay  compensation  in  case  of  personal  injury  by  accident 
arising  out  of  and  in  the  course  of  the  emplo^Tnent  when  caused  to  a 
workman,  he  said  that,  if  he  had  to  consider  the  principle  of  the  statute 
as  res  intrgra,  he  would  be  of  opinion  that  the  principle  was  one  more 
akin  to  insurance  at  the  expense  of  the  employer  of  the  workman 
against  accidents  arising  out  of  and  in  the  course  of  his  emplo\Tnent, 
than  to  the  imposition  on  the  employer  of  liability  for  anj'thing  for 
which  he  might  reasonably  be  made  answerable  on  the  ground  that  he 
ought  to  have  foreseen  and  prevented  it.  He  thought  that  the  funda- 
mental conception  was  that  of  insurance  in  the  true  sense.  And  if  so 
it  appeared  to  him  to  follow  that  in  giving  a  meaning  to  "accident" 
in  its  context  in  such  a  scheme  one  would  look  naturally  to  the  proxima 
causa,  of  which  Lord  Herschell  and  Lord  Bramwell  spoke  in  connec- 
tion with  marine  insurance,  the  kind  of  event  which  was  unlocked  for 
and  sudden,  and  caused  personal  injury,  and  was  limited  only  by  this, 
that  it  must  arise  out  of  and  in  the  course  of  the  employment.  Behind 
this  event  it  appeared  to  him  that  the  purpose  of  the  statute  rendered 
it  irrelevant  to  search  for  explanations  or  remoter  causes,  pro\nded  the 
circumstances  brought  it  within  the  definition. 


SECT.  IV.]      TRIM    JOINT   DISTRICT   SCHOOL    BOARD    V.    KELLY.  389 

No  doubt  the  analogy  of  the  insurance  cases  must  not,  as  Lord 
Lindley  pointed  out  in  his  judgment  in  Fenton  v.  Thorley,  [1903] 
A.  C  443,  be  apphed  so  as  to  exclude  from  the  cause  of  injury  the  acci- 
dent that  really  caused  it  merely  because  an  intermediate  condition  of 
the  injury  —  in  that  case  a  rupture  arising  from  an  effort  voluntarily 
made  to  move  a  defective  machine  — -  had  intervened.  If,  so  far  as 
the  workinan  was  concerned,  unexpected  misfortune  happened  and 
injury  was  caused,  he  was  to  be  indemnified.  The  important  limitation 
which  the  statute  seemed  to  him  to  impose  in  the  interest  of  the  em- 
ployer, who  could  not  escape  from  being  a  statutory  insurer,  was  that 
the  risk  should  have  arisen  out  of  and  in  the  course  of  the  employ- 
ment. 

It  was,  however,  argued  for  the  appellants  that  the  definition  of 
what  accident  meant  in  the  x-Vct  was  determined  differently  by  the 
judgments  in  this  House  in  the  case  of  Fenton  v.  Thorley  (supra), 
above  referred  to.  But  the  House  was  not  there  considering  an  in- 
jury unexpected  by  the  workman,  but  caused  by  the  intentional  act  of 
another  person.  Nor  did  he  think  that  the  expressions  used  in  the 
judgments  excluded  such  a  case  from  the  definition  actuallv'  given  of 
accident.  After  saying  that  the  element  of  haphazard  was  not  neces- 
sarily involved  in  the  word  "accidental,"  Lord  Macnaghten  defined 
"accident"  as  used  in  the  Act  "in  the  popular  and  ordinary  sense  of 
the  word  as  denoting  an  unlooked  for  mishap  or  an  untoward  event 
which  is  not  expected  or  designed."  He  thought  that  the  context 
showed  that  in  using  the  word  "designed"  he  was  referring  to  designed 
by  the  sufferer.  Nor  did  the  judgment  of  Lord  Lindley,  when  closely 
considered,  appear  to  him  to  support  the  argument  for  the  appel- 
lants. 

His  Lordship  then  considered  in  detail  the  judgment  of  Lord  Lipdley 
and  referred  to  subsection  2(h)  of  section  1  of  the  Act,  which  he  said 
confirmed  the  view  that  "accident"  was  used  in  that  section  as  in- 
cluding a  mishap  unexpected  l)y  the  workman,  irrespective  of  whether 
or  not  it  was  brought  about  by  the  wilful  act  of  someone  else.  In  his 
opinion,  the  language  of  the  judgments  in  Fenton  v.  Thorley,  so  far 
from  being  authority  which  supported  the  argument  addressed  to  their 
Lordships  from  the  Bar  for  the  appellants,  really  assisted  the  conten- 
tion of  the  respondent.  For  that  language  laid  stress  on  the  wide- 
reaching  scope  of  the  statute  in  question.  It  showed  how  that  scope 
extended  the  liability  it  embraced  beyond  liability  for  negligence,  and 
covered  a  field  akin  to  statutory  insurance  against  injury  to  the  work- 
man arising  out  of  and  in  the  course  of  his  employment,  proAided  that 
that  injury  was  something  not  expected  or  designed  l)y  the  workman 
himself.  He  thought  that  this  conclusion  as  to  what  the  Legislature 
intended  by  its  language  was  strengthened  by  section  8,  which  placed 
disablement  from  certain  industrial  diseases  on  the  same  footing  as 
the  happening  of  an  accident.    This  provision  seemed  to  show  that  what 


390  TRIM    JOINT    DISTRICT    SCHOOL    BOARD    V.    KELLY.       [CHAP.  IV. 

the  legislature  had  in  view  as  a  general  object  to  be  attained  was  the 
compensation  of  the  workman  who  suffered  misfortune. 

If  the  object  of  this  statute  were  as  wide  as  he  gathered  from  the 
study  of  its  language,  its  construction  must,  as  it  appeared  to  him, 
be  that  "accident"  included  any  injury  which  was  not  expected  or  de- 
signed by  the  workman  himself.  If  so  the  Court  of  Appeal  in  England 
was  right  in  its  decision  in  Nisbet  v.  Rayne  {supra)  that  the  definition 
extended  to  a  case  of  death  by  murder,  and  the  Court  of  Appeal  in 
Ireland  was  right  in  Anderson  v.  Balfour,  (1910)  2  Ir.  497,  and  in  the 
present  case  in  taking  a  similar  view  of  the  meaning  of  "accident." 
To  take  a  different  \dew  appeared  to  him  to  amount,  in  the  language 
of  Mathew,  L.  J.,  in  Challis  v.  L.  and  S.  W.  R.  Company  (21  The 
Times  L.  R.,  486;  [1905]  2  K.  B.  154)  to  the  reading  into  the  Act  of 
a  pro\'iso  that  an  accident  was  not  to  be  deemed  within  it  if  it  arose 
from  the  mischievous  act  of  a  person  not  in  the  service  of  the  em- 
ployer. The  Second  Di\asion  of  the  Court  of  Session  refused  to  follow 
these  decisions  in  Murray  v.  Denholm,  [1911]  S.  C.  1807.  But  he 
thought,  for  reasons  that  he  had  already  given,  that  the  Lord  Justice 
Clerk  misinterpreted  Lord  Macnaghten's  judgment  in  Fenton  v. 
Thorley  (supra)  when  he  read  it  as  meaning  that  the  expression  "  acci- 
dent" could  not  be  applied  to  accident  arising  out  of  wilful  crime. 
And  he  was  confirmed  in  his  view  of  the  unrestricted  rendering  of  the 
meaning  of  the  word  which  he  attributed  to  Lord  Macnaghten  by 
reading  his  subsequent  judgment  in  Clover,  Clayton  &  Co.  v.  Hughes, 
[1910]  A.  C.  242,  where  he  spoke  of  the  "far-reaching  application  of 
the  word,"  and  intimated  that  what  was  held  in  Fenton  v.  Thorley 
(supra)  was  that  "injury"  and  "accident"  were  not  to  be  separated, 
and  that  "injury  by  accident"  meant  nothing  more  than  accidental 
injury  or  accident  as  the  word  was  popularly  used. 

In  the  present  case  the  facts  left  little  doubt  on  his  mind  that  from 
one  point  of  view  at  all  events  Kelly  met  with  what  might  properly  be 
described  as  an  accident,  and  it  was  not  the  less  an  accident  in  an  or- 
dinary and  popular  sense  in  which  the  word  was  often  used  merely 
for  the  reason  that  it  was  caused  by  deliberate  violence.  For  the  rest, 
he  had  no  doubt  that  there  was  evidence  on  which  the  arbitrator 
could  find,  as  he  did,  that  the  accident  so  defined  arose  out  of,  and  in 
the  course  of,  the  employment. 

He  was  therefore  of  opinion  that  the  appeal  should  be  dismissed 
with  costs. 

Lord  Loreburn  concurred.  He  said  that  et^Tnologically  the  word 
accident  meant  something  which  happened  —  a  rendering  which  was 
not  very  helpful.  They  were  to  construe  it  in  the  popular  sense,  as 
plain  people  would  understand  it,  but  they  were  also  to  construe  it 
in  its  setting,  in  the  context,  and  in  the  light  of  the  purpose  which 
appeared  from  the  Act  itself.  Now,  there  was  no  single  rigid  meaning 
in  the  common  use  of  the  word.     Mankind  had  taken  the  libertv  of 


SECT.   IV.J       TKIM    JOINT   DISTRICT    SCHOOL    BOARD    V.    KELLY.  391 

using  it,  as  they  used  so  many  other  words,  not  in  any  exact  sense,  but 
in  a  somewhat  confused  way,  or  rather  in  a  variety  of  waj's. 

People  said  that  someone  met  a  friend  in  the  street  quite  by  accident, 
as  opposed  to  appointment,  or  omitted  to  mention  something  by  acci- 
dent, as  opposed  to  intention,  or  that  he  was  disabled  by  an  accident, 
as  opposed  to  disease,  or  made  a  discovery  by  accident,  as  opposed  to 
search  or  reasoned  experiment.  When  people  used  this  word  they  were 
usually  thinking  of  some  definite  event  which  was  unexpected,  but  it 
was  not  so  always,  for  one  might  say  of  a  person  that  he  was  foolish 
as  a  rule  and  wise  only  by  accident.  Again,  the  same  thing,  when 
occurring  to  a  man  in  one  kind  of  employment,  would  not  be  called 
accident,  but  would  be  so  described  if  it  occurred  to  another  not 
similarly  employed.  A  soldier  shot  in  battle  was  not  killed  by  acci- 
dent in  common  parlance.  An  inhabitant  trying  to  escape  from  the 
field  might  be  shot  by  accident.  It  made  all  the  difference  that  the 
occupation  of  the  two  was  different.  In  short,  the  common  mean- 
ing of  this  word  was  ruled  neither  by  logic  nor  by  et;yTnology,  but 
by  custom,  and  no  formula  would  precisely  express  its  usage  for  all 
cases. 

Mr.  Sankey  ably  urged  upon  their  Lordships  that  this  man  could 
not  have  been  killed  by  accident  because  he  was  struck  by  design. 
Suppose  some  ruffian  laid  a  log  on  the  rails  and  wrecked  a  train,  was 
the  guard  who  had  been  injured  excluded  from  the  Act?  Was  a  game- 
keeper who  was  shot  by  poachers  excluded  from  the  Act?  There  was 
design  enough  in  either  case,  and  of  the  worst  kind.  In  either  case 
he  would  have  thought,  if  the  nature  of  the  man's  employment  was 
looked  at,  it  might  be  said  he  was  injured  by  what  was  accident  in 
that  employment.  When  Lord  Macnaghten,  in  Fenton  v.  Thorley 
(supra)  spoke  of  the  occurrence  being  "undesigned,"  he  thought  he 
meant  undesigned  by  the  injured  person.  One  could  not  imagine  its 
being  said  of  a  suicide  that  he  was  killed  by  accident.  He  found  that 
to  treat  the  word  accident  as  though  the  Act  meant  to  contrast  it  with 
design  would  exclude  from  what  he  was  sure  was  an  intended  benefit 
numbers  of  cases  which  were  to  his  mind  obviously  within  the  mischief. 
That  made  him  realize  the  value  of  the  old  rule  about  construing  a 
remedial  statute.  Just  as  in  the  case  of  the  guard  or  the  gamekeeper, 
so  here  this  man  was  injured  by  what  was  accident  in  the  employment 
in  which  he  was  engaged.  It  was  not  the  less  so  that  the  person  who 
inflicted  the  injury  acted  deliberately.  He  also  came  to  the  conclusion 
that  there  was  e\adence  to  support  the  finding  of  the  County  Court 
Judge  that  the  accident  arose  out  of  the  emplo\Tnent. 

Lord  Dunedin  differed.  After  discussing  Lord  Macnaghten's  defi- 
nition of  "accident,"  in  Fenton  v.  Thorley  (supra),  he  said  that  there 
was  one  matter  of  completely  general  application  which  he  conceived 
was  authoritatively  decided  by  PVnton's  case  (supra)  and  that  was 
that  the  expression  "injury  by  accident"  in  the  statute  must  be  in- 


392  TRIM    JOINT    DISTRICT    SCHOOL    BOARD    V.    KELLY.      [CHAP.  IV, 

terpreted  according  to  the  meaning  of  the  words  in  ordinary  popular 
language. 

Now,  there  was  no  authoritative  test  of  what  was  the  meaning  of 
popular  language.  On  such  a  matter  they  were  bound  to  take  their 
own  personal  experience  as  persons  well  acquainted  with  popular 
language.  For  himself,  he  confessed  that  it  seemed  so  clear  that  in 
popular  language  the  injury  in  this  case  was  not  an  injury  caused  by 
accident,  that  it  was  difficult  for  him  to  use  terms  which  might  not 
appear  wanting  in  respect  to  those  who  had  expressed  themselves 
otherwise. 

It  must  be  conceded  that  the  injury  here  was  caused  by  design  — 
i.  e.,  that  there  was  an  intention  to  inflict  an  injury.  To  his  thinking, 
the  word  accident  in  popular  language  was  the  very  antithesis  of  design. 
He  brushed  aside  at  once  all  arginnent  as  to  acts  of  conscious  ^-olition. 
The  design  must  be  design  to  inflict  the  injury,  not  design  to  do  the 
act  which  might,  as  it  turned  out,  be  the  cause  of  the  injury.  Popular 
language  bore  him  out  in  this  distinction.  If  a  workman  kicked  a 
brick  off  a  scaffold  and  it  happened  to  hit  and  injure  a  man  below, 
popular  language  would  say  he  had  met  with  an  accident.  Popular 
language  in  this  case,  he  maintained,  would  never  say  that  Kelly  met 
his  death  by  accident.  It  would  say  that  he  was  murdered.  In  so 
doing  it  might  not  be  positively  accurate.  The  crime  as  a  crime  might 
possibly  not  be  murder,  but  only  manslaughter,  as  indeed,  a  jury  found. 
But  whether  murder  or  manslaughter  mattered  not.  Both  terms  were 
negative  of  accident  in  the  popular  sense.  And  here  he  would  like  to 
say  that  in  his  view  criminal  law  had  nothing  to  do  with  the  matter. 
Criminal  law  had  to  do  with  the  mens  rea.  When  one  said  that  popular 
language  would  describe  this  as  murder,  that  was  because  the  nar- 
rator of  what  had  happened  would  naturally  use  a  positive  expression 
which  according  to  his  view  fitted  the  facts.  The  point  was  that  he 
would  not  use  the  expression  "accident,"  because  he  would  consider  it 
inappropriate.  Suppose  A  attacked  B  and  was  shot  by  B  in  self- 
defense,  there  would  be  no  mens  rea  in  B,  and  no  crime.  None  the  less, 
no  one  popularly  would  describe  A's  death  as  a  death  by  accident. 

He  wished  to  add  a  word  as  to  the  scope  of  the  statute.  It  was  said 
to  aid  the  argument  in  favor  of  the  enlargetl  meaning  of  accident  to 
consider  that  the  statute  introduced  a  system  of  compulsory  insurance 
of  the  workman  by  his  employer.  Again,  with  great  deference,  he 
could  not  see  that  by  this  statute  the  argument  was  forwarded  one 
whit  —  insurance  let  it  be  —  but  insurance  against  what?  In  a  con- 
tract one  found  an  answer  to  this  question  in  the  terms  of  the  policy. 
Here  the  policy  was  the  Act  of  Parliament  and  by  an  interpretation 
of  its  terms  one  must  stand  or  fall.  So  that  it  only  came  back  to  the 
same  question.  What  was  the  meaning  of  the  word  as  used?  As  for 
further  speculations,  these,  he  humbly  thought,  were  entirely  outside 
their  province.     He  would  only  say  that  if  judges  were  to  indulge  in 


SECT.  I  V.J  SMITH    V.    FIFE    COAL    CO.,  LTD.  393 

speculations  and  reminiscences,  they  would  probably  find  that  such 
speculations  and  reminiscences  did  not  altogether  tally.  But  clearly 
they  had  nothing  to  do  with  such  matters.  Parliament  might  have 
left  out  the  word  accident.  It  did  not  do  so.  On  the  contrary,  it  put 
it  in,  as  Lord  Macnaghten  said,  with  the  approbation  of  all  the  other 
lords,  in  Fenton's  case  (supra),  "parenthetically,  as  it  were,  to  quaHfy 
the  word  injury,  confining  it  to  a  certain  class  of  injuries  and  exclud- 
ing other  classes,"  and  they  had  to  interpret  it.  And  in  interpreting 
it  he  would  like  to  say  that  he  agreed  with  his  noble  and  learned  friend, 
Lord  Atkinson  whose  judgment  he  had  the  advantage  of  reading, 
that  the  interpretation  of  accident  given  by  the  appellants  really  cut 
the  word  accident  out  of  the  Act. 

On  the  whole  matter  he  put  to  himself  the  entire  question  in  the 
words  of  the  statute,  Was  what  Kelly  suffered  an  injury  by  accident 
arising  out  of  and  in  the  course  of  his  employment?  And  remembering 
the  repeated  decisions  of  this  House  that  he  was  to  take  the  language 
in  the  ordinary  popular  meaning  he  answered  unhesitatingly,  No. 

Lord  Atkinson  and  Lord  Parker  of  Waddington  agreed  with 
Lord  Dunedin. 

Lord  Shaw  of  Dunfermline  and  Lord  Reading  agreed  with  the 
Lord  Chancellor  and  Lord  Loreburn. 

In  the  result  the  appeal  was  dismissed. 


SMITH   V.   FIFE   COAL  CO.,  LTD. 
House  of  Lords,  1914. 

[Reported  30  Times  L.  R.  502.] 

On  June  28,  1912,  the  appellant,  in  discharge  of  his  duty  as  a  miner 
in  the  Benarty  pit  of  the  respondents,  prepared  a  hole  at  his  working 
place  there  for  blasting,  by  placing  the  charge  and  detonator  therein, 
and  then  packing  the  charge.  Following  the  practice  in  the  mine,  al- 
though the  practice  was  unknown  to  the  management,  the  appellant, 
acting  upon  the  instructions  of  Howard,  the  shot-firer  appointed  in 
terms  of  the  Explosives  in  Coal  Mines  Order  of  February  21,  1910, 
section  2  (a),  connected  the  detonator  wire  to  the  cable.  Under  that 
Order  the  duty  was  placed  upon  the  shot-firer  of  connecting  the  cable 
to  the  firing  apparatus  or  battery,  and  thereafter  of  turning  the  handle 
on  the  battery  so  as  to  discharge  the  shot;  but  Ijefore  performing  either 
of  these  operations  it  was  his  duty  under  the  Order  to  see  that  all 
persons  in  the  vicinity  had  taken  proper  shelter.  On  the  date  in  ques- 
tion the  appellant,  after  connecting  the  cable  to  the  charge,  was  pro- 
ceeding to  a  place  of  safety  in  reliance  upon  the  shot-firer's  ascertain- 
ing that  the  appellant  had  taken  shelter  before  he  fired  the  shot. 


39-i  SMITH    V.    FIFE    COAL   CO.,  LTD.  [CHAP.  IV. 

The  Sheriff-Substitute  found  that  the  appellant  received  personal 
injury  by  accident  arising  out  of  and  in  the  course  of  his  employment, 
and  awarded  him  compensation.  The  Second  Di\-ision  held  that 
there  was  no  evidence  to  support  the  finding  of  the  arbitrator  and 
recalled  his  award. 

Lord  Dunedin.  My  Lords,  I  do  not  think  it  necessary  to  make 
any  remarks  of  a  general  character  upon  the  phrase  in  the  statute 
"arising  out  of  the  employment,"  because  I  did  so  with  the  approval 
of  other  members  of  your  Lordships'  House  in  the  very  recent  case 
of  Plumb  V.  Cobden  FJour  Mills  Company  (30  The  Times  L.  R.,  174, 
[1914]  A.  C.  62),  and  I  do  not  wish  to  repeat  what  I  then  said.  Nor  do' 
I  think  that  there  was  any  divergence  of  opinion  in  the  judgments  of 
the  learned  judges  in  this  case  from  the  law  as  then  laid  down.  Taking 
the  phrase  as  a  test,  and  not  as  a  definition,  it  may,  I  think,  be  conceded 
that  if  the  accident  was  due  to  the  man's  arrogating  to  himself  duties 
which  he  was  not  called  on  to  perform,  and  which  he  had  no  right  to 
perform,  then  he  was  acting  out  of  the  sphere  of  his  employment,  and 
the  injury  by  accident  did  not  arise  out  of  his  employment.  The  sole 
question  is.  Was  this  so  in  this  case?  Or,  in  other  words,  What  is  the 
true  view  of  the  facts? 

I  regret  that  I  cannot  come  to  the  same  conclusion  as  that  come  to 
by  the  learned  judges.  I  think  that  I  can  best  make  my  view  clear  by 
taking  the  case  of  Kerr  v.  Baird  (1911  S.  C.  701)  and  contrasting  it 
with  this.  In  that  case  the  miner  arranged  a  shot  and  fired  it  entirely 
by  himself  —  I  mean  wathout  the  presence  or  help  of  the  shot-firer 
at  any  stage  of  the  proceeding.  It  was  held  rightly  that  the  accident 
was  due  to  the  action  of  the  man,  and  that  such  action  consisted  in 
taking  upon  himself  duties  which  he  had  no  right  to  perform.  Here, 
on  the  contrary,  the  miner  did  not  arrange  and  fire  the  shot.  One  part 
of  the  composite  action  was  liis  duty  to  insert  and  stem  the  detonator, 
and  that  he  did.  The  next  step  —  the  connecting  of  the  detonator 
wire  to  the  cable  —  he  had  no  business  to  do,  and  in  doing  it  he  did 
something  which  was  not  in  the  sphere  of  his  emplojTnent.  But 
two  more  stages  are  necessary  before  we  arrive  at  the  explosion  which 
causes  the  injury  and  forms  the  accident  —  namely,  the  connecting 
of  the  cable  to  the  battery  and  the  putting  of  the  battery  into  efficient 
action  by  the  turning  of  the  handle,  and  both  these  stages  are  done 
by  the  shot-firer.  In  the  circumstances  I  cannot  bring  myself  to  see 
that  the  efficient  cause  of  the  accident  was  connected  with  the  arro- 
gation  of  unauthorized  duty  by  the  miner.  It  is  true  that  no  explosion 
could  have  taken  place  unless  the  cable  had  been  connected  with  the 
detonator.  But  that  is  only  a  remote  cause  sine  qua  non,  and  one  in 
which  the  relation  of  the  appellant  to  the  act  as  distinguished  from 
any  other  person  is  immaterial.  It  seems  to  me  that  the  question  of 
fact  which  has  to  be  answered  is  this:  Did  the  injury  to  the  appellant 
arise  out  of  the  illicit  and  unauthorized  action  of  the  appellant?    The 


SKCT.  IV.]  MARTIN    V.    LOVIBOND    &    SONS,  LTD.  395 

answer  to  that,  it  seems  to  me,  so  far  as  the  action  of  the  appellant 
consisted  in  coupling  the  wire,  is  "No."  The  injury  arose  from  the 
premature  explosion,  and  that  premature  explosion  was  caused  by  the 
action  of  the  shot-firer.  His  Lordship  was  therefore  of  opinion  that  the 
view  of  the  facts  taken  by  the  arbitrator  was  correct,  and  that  his 
finding  should  be  restored. 

Lord  Kinnear,  Lord  Atkinson,  and  Lord  Shaw  of  Dunferm- 
line concurred. 

Lord  Parmoor  gave  judgment  to  the  same  effect. 


MARTIN  V.  J.   LOVIBOND   &   SONS,   LTD. 

Court  of  Appeal,  1914. 

[Reported  [1914]  2  A'.  B.  227.] 

Cozens-Hardy,  M.R.  In  this  case  the  learned  county  court  judge, 
a  judge  of  very  great  experience,  has  held  that  the  dependents  of  a 
deceased  drayman  are  entitled  to  compensation.  In  these  cases  it  is 
necessary  to  consider  the  nature  of  the  employment,  the  obligations 
of  the  man  with  reference  to  his  emplojTiient,  and  all  the  circum- 
stances, before  one  can  arrive  at  a  conclusion.  The  man  was  a  dray- 
man. His  duties  were  from  eight  in  the  morning  till  eight  in  the  evening. 
All  that  time  he  was  going  round  for  his  employers,  who  were  brewers, 
not  merely  to  deliver  beer  at  the  public-houses  tied  to  the  brewers' 
firm,  but  also  to  deliver  bottled  beer  and  other  things  to  private  cus- 
tomers, to  obtain  orders  for  beer  and  everything  of  that  kind.  He  was 
going  his  round ;  the  learned  judge  finds  as  a  fact  that  he  was  in  the 
particular  street  where  this  accident  happened;  he  was  there  with  his 
dray  in  the  course  of  going  his  round.  He  was  not  deviating  in  any 
way  from  his  duty.  It  was  about  two  o'clock  in  the  afternoon.  What  is 
the  position  of  a  man  who  cannot  go  home  for  his  meals,  who  is  bound  to 
be  away  from  his  home  from  eight  in  the  morning  till  eight  in  the  even- 
ing, and  whose  business  keeps  him  during  all  that  time  more  or  less  con- 
stantly in  the  streets?  This  man  pulled  up  his  dray  on  the  proper  side 
of  the  road,  crossed  to  a  public-house,  not  to  linger  there  at  all,  but 
for  the  purpose  of  getting  a  glass  of  beer.  He  had  a  glass  of  beer  there, 
he  was  only  away  two  minutes,  and  in  crossing  back  from  the  public- 
house  to  the  dray  he  was  knocked  down  by  a  motor  car. 

In  the  first  place,  it  is  said  that  this  accident  did  not  arise  in  the 
course  of  his  employment.  I  entirely  fail  to  understand  that.  I  do 
not  think  there  was  any  breach  or  break  in  the  course  of  his  employ- 
ment. I  shrink  from  saj-ing  that  a  man  who  was  away  from  home,  and 
necessarily  away  from  home  for  twelve  hours,  is  guilty  of  breaking 
the  course  of  his  employment  because  he  gets  off  the  dray  for  necessary 


396  MARTIN    V.    LOVIBOND    &    SONS,  LTD.  [CHAP.  IV. 

purposes.  As  I  put  it  during  the  course  of  the  argument,  supposing 
he  had  stopped  to  give  the  horses  some  water,  could  it  be  said  that  that 
was  not  in  the  course  of  his  employment?  I  feel  great  difficulty  in 
seeing  that  under  circumstances  like  these  the  driver  of  the  dray  is  not 
equally  entitled  to  procure  reasonable  liquid  refreshment  for  himself, 
not  deviating  from  the  course  of  his  route,  not  lingering  in  the  public- 
house,  but  simply  going  in  and  getting  a  glass  of  beer  as  in  this  case, 
and  returning  at  once  to  his  dray.  I  therefore  think  that  there  was  no 
breach  of  the  course  of  his  employment,  and  that  the  accident  did  hap- 
pen in  the  course  of  his  employment. 

Then  it  is  said,  and  in  truth,  that  the  accident  must  arise  not  merely 
"in  the  course  of"  but  "  out  of  the  employment,"  and  that  this  man  was 
no  more  exposed  to  the  risk  of  being  knocked  down  by  a  motor  car  than 
any  other  member  of  the  public.  I  cannot  assent  to  that.  His  duties  as 
a  drayman  involved  his  being  from  eight  in  the  morning  till  eight  at  night 
more  or  less  actually  in  the  streets  of  London,  spending  his  life  in  the 
streets  of  London.  It  seems  to  me  to  bear  the  strictest  possible  analogy 
to  the  bicycle  case  —  Pierce  v.  Pro\'ident  Clothing  and  Supply  Co., 
[1911]  1  K.  B.  997,  —  where  we  held  that  a  man  who  is  exception- 
ally exposed  to  street  accidents  is  entitled  to  claim  in  respect  of  such 
an  accident  as  arising  out  of  his  employment,  although  an  ordinary 
member  of  the  public  not  so  exceptionally  exposed  would  not  be  so 
entitled. 

The  learned  judge  held  that  what  the  man  did  was  not  only  in  the 
course  of  his  employment,  but  was  done  perfectly  reasonably  —  not 
unreasonably  in  any  way.  He  has  held  that  what  he  did  was  really 
done  in  order  to  enal)le  him  to  better  discharge  his  duties  as  a  dray- 
man for  his  employers.  I  hold  that  there  is  no  ground  for  differing 
from  his  decision. 

Sir  Samuel  Evans,  President.  I  agree.  As  Lord  Loreburn  said 
in  one  of  the  cases  in  the  House  of  Lords,  the  more  one  sees  of  these 
cases  under  the  Workmen's  Compensation  Act,  the  more  one  feels 
that  all  of  them  are  in  reality'  pure  questions  of  fact,  with  regard  to 
which  the  only  function  of  the  court  is  to  interpose  when  there  is  no 
evidence  in  support  of  a  particular  finding. 

The  facts  here  are  few  and  simple,  and  I  will  not  repeat  them.  I 
will  only  emphasize  that  the  evidence  before  the  learned  county  court 
judge  and  the  finding  of  the  learned  judge  were  that  this  man  was  at 
his  work  for  twelve  hours  or  more,  and  further  that  during  those  twelve 
hours  he  was  away  from  his  home  and  his  place  of  business.  He  had 
no  eating  or  resting  place  except  on  his  dra\'.  On  the  day  in  question 
he  goes  to  the  public-house,  not  as  a  loafer,  or  as  a  lounger,  or  a  man 
addicted  to  drink,  but  for  the  purpose  of  refreshing  himself  with  one 
glass  of  beer,  and  the  whole  period  of  his  absence,  including  the  time 
taken  up  in  ordering  the  refreshment  and  its  consumption,  the  learned 
judge  says  was  only  two  minutes.    It  is  said  that  the  accident  that  oc- 


SECT.  IV.]  McNICOL's   CASE.  397 

curred  to  this  man  while  going  back  to  his  draj^  did  not  arise  out  of  or 
in  the  course  of  his  employment.  Personally,  I  am  verj'  glad  that  the 
learned  judge  has  found  that  what  he  did  was  a  reasonable  incident  of 
his  employment.  In  my  opinion  he  was  justified  in  so  finding.  If  he 
had  found  that  there  was  an  implied  term  in  his  contract  of  service 
that  the  man  should  be  allowed  to  take  refreshment  in  this  way  during 
the  twelve  hours,  I  think  no  court  would  have  disturbed  his  finding. 
The  learned  judge  was  amply  justified  in  coming  to  the  conclusion 
that  the  accident  to  the  deceased,  in  the  circumstances,  arose  out  of 
and  in  the  course  of  his  employment.    The  appeal  therefore  fails. 

Eve,  J.  I  concur.  The  employment  in  this  case  was  of  a  character 
which  I  think  may  be  properly  defined  as  continuous  and  peripatetic. 
It  was  an  employment  in  which  the  workman  was  exceptionally  exposed 
to  street  accidents.  The  peripatetic  character  of  the  employment 
made  the  accident  one  "arising  out  of  the  employment,"  and  its  con- 
tinuity made  it  one  "  arising  in  the  course  of  the  employment."  I  think 
the  learned  judge  was  quite  right. 

~~  Appeal  dismissed. 


McNICOL'S    CASE. 
Supreme  Judicial  Court  of  Massachusetts,  1913. 

[Reported   215   Mass.   497.] 

RuGG,  C.  J.  This  is  a  proceeding  under  St.  1911,  c.  751,  as  amended 
by  St.  1912,  c.  571,  known  as  the  workmen's  compensation  act,  by  de- 
pendent relatives  for  compensation  for  the  death  of  Stuart  McNicol. 

1.  The  first  question  is  whether  the  deceased  received  an  "injury 
arising  out  of  and  in  the  course  of  his  employment, "  within  the  meaning 
of  those  words  in  Part  II,  §  1,  of  the  act.  In  order  that  compensation 
may  be  due  the  injury  must  both  arise  out  of  and  also  be  received  in  the 
course  of  the  employment.     Neither  alone  is  enough. 

It  is  not  easy  nor  necessary  to  the  determination  of  the  case  at  bar  to 
give  a  comprehensive  definition  of  these  words  which  shall  accurately 
include  all  cases  embraced  within  the  act  and  with  precision  exclude 
those  outside  its  terms.  It  is  sufficient  to  say  that  an  injury  is  recei\-ed 
"in  the  course  of  "  the  employment  when  it  comes  while  the  workman  is 
doing  the  duty  which  he  is  employed  to  perform.  It  "arises  out  of"  the 
employment,  when  there  is  apparent  to  the  rational  mind,  upon  consid- 
eration of  all  the  circumstances,  a  causal  connection  between  the  con- 
ditions under  which  the  work  is  required  to  be  performed  and  the 
resulting  injury.  Under  this  test,  if  the  injury  can  be  seen  to  have 
followed  as  a  natural  incident  of  the  work  and  to  have  been  contem- 
plated by  a  reasonable  person  familiar  with  the  whole  situation  as  a 
result  of  the  exposure  occasioned  by  the  nature  of  the  employment, 


398  mcnicol's  case.  [chap.  iv. 

then  it  arises  "  out  of"  the  employment.  But  it  excludes  an  injury  which 
cannot  fairly  be  traced  to  the  employment  as  a  contributing  proximate 
cause  and  which  comes  from  a  hazard  to  which  the  workmen  would 
have  been  equally  exposed  apart  from  the  employment.  The  causa- 
tive danger  must  be  peculiar  to  the  work  and  not  common  to  the 
neighborhood.  It  must  be  incidental  to  the  character  of  the  business 
and  not  independent  of  the  relation  of  master  and  servant.  It  need 
not  have  been  foreseen  or  expected,  but  after  the  event  it  must  appear 
to  have  had  its  origin  in  a  risk  connected  with  the  employment,  and  to 
have  flowed  from  that  source  as  a  rational  consequence. 

The  exact  words  to  be  interpreted  are  found  in  the  English  workmen's 
compensation  act,  and  doubtless  came  thence  into  our  act.  Therefore 
decisions  of  English  courts  before  the  adoption  of  our  act  are  entitled 
to  weight.  Ryalls  v.  Mechanics'  Mills,  150  Mass.  190.  It  there  had 
been  held  that  injuries  received  from  lightning  on  a  high  and  unusu- 
ally exposed  scaffold,  Andrew  v.  Failsworth  Industrial  Society,  [1904] 
2  K.  B.  32;  from  the  bite  of  a  cat  habitually  kept  in  the  place  of  employ- 
ment, Rowland  v.  Wright,  [1909]  1  K.  B.  963;  from  a  stone  thrown  by  a 
boy  from  the  top  of  a  bridge  at  a  locomotive  passing  underneath,  Challis 
V.  London  &  Southwestern  Railway,  [1905]  2  K.  B.  154;  and  from  an 
attack  upon  a  cashier  tra^'eling  with  a  large  sum  of  money,  Nisbet  v. 
Rayne  &  Burn,  [1910]  2  K.  B.  689,  all  arose  in  the  course  and  out  of  the 
employment,  while  the  contrary  had  been  held  as  to  injuries  resulting 
from  a  piece  of  iron  thrown  in  anger  by  a  boy  in  the  same  service,  Armi- 
tage  V.  Lancashire  &  Yorkshire  Railway,  [1902]  2  K.  B.  178;  from  fright 
at  the  incursion  of  an  insect  into  the  room,  Craske  v.  Wigan,  [1909]  2  K. 
B.  635;  and  from  a  felonious  assault  of  the  employer,  Blake  v.  Head,  106 
L.  T.  Rep.  822. 

The  definition  formulated  above,  when  referred  to  the  facts  of  these 
cases,  reaches  results  in  accord  with  their  conclusions.  Applying  it  to 
the  facts  of  the  present  case,  it  seems  plain  that  the  injury  of  the  de- 
ceased arose  "out  of  and  in  the  course  of  his  employment."  The  find- 
ings of  the  Industrial  Accident  Board  in  substance  are  that  Stuart  Mc- 
Nicol,  while  in  the  performance  of  his  duty  at  the  Hoosac  Tunnel  Docks 
as  a  checker  in  the  employ  of  a  firm  of  importers,  was  injured  and  died  as 
a  result  of  "  blows  or  kicks  administered  to  him  by  .  .  .  [Timothy]  Mc- 
Carthy," who  was  in  "an  intoxicated  frenzy  and  passion."  McCarthy 
was  a  fellow  workman  who  "was  in  the  habit  of  drinking  to  intoxi- 
cation, and  when  intoxicated  was  quarrelsome  and  dangerous,  and  un- 
safe to  be  permitted  to  work  with  his  fellow  employees,  all  of  which  was 
known  to  the  superintendent  Matthews,"  who  knowingly  permitted 
him  in  such  condition  to  continue  at  work  during  the  day  of  the  fatality, 
—  which  occurred  in  the  afternoon.  The  injury  came  while  the  de- 
ceased was  doing  the  work  for  which  he  was  hired.  It  was  due  to  the 
act  of  an  obviously  intoxicated  fellow  workman,  whose  quarrelsome 
disposition  and  inebriate  condition  were  well  known  to  the  foreman  of 


SECT.  IV.]  DONOVAN'S  CASE.  399 

the  employer.  A  natural  result  of  the  employment  of  a  peaceable  work- 
man in  compan\'  with  a  choleric  drunkard  might  ha\e  been  found  to  be 
an  attack  by  the  latter  upon  his  companion.  The  case  at  bar  is  quite 
distinguishable  from  a  stabbing  by  a  drunken  stranger,  a  felonious  at- 
tack by  a  sober  fellow  workman,  or  even  rough  sport  or  horseplay  by 
companions  who  might  have  been  expected  to  be  at  work.  Although 
it  may  be  that,  upon  the  facts  here  disclosed,  a  liability  on  the  part  of 
the  employer  for  negligence  at  common  law  or  under  the  employers' 
liability  act  might  have  arisen,  this  decision  does  not  rest  upon  that 
ground,  but  upon  the  causal  connection  between  the  injury  of  the  de- 
ceased and  the  conditions  under  which  the  defendant  required  him  to 
work.  A  fall  from  a  quay  by  a  sailor  while  returning  from  shore  leave, 
Kitchenham  v.  Owners  of  S.  S.  Johannesburg,  [1911]  1  K.  B.  523;  S.  C. 
[1911]  A.  C.  417;  a  sting  from  a  wasp,  Amys  v.  Barton,  [1912]  1  K.  B.  40; 
and  a  frost  bite,  Warner  v.  Couchman,  [1912]  A.  C.  35,  all  have  been 
held  to  be  injuries  not  "arising  out  of"  the  empIo\TTient.  But  we  find 
nothing  in  any  of  them  in  conflict  with  our  present  conclusion.  Nor 
is  there  anything  at  variance  with  it  in  Mitchinson  v.  Day  Brothers, 
[1913]  1  K.  B.  603,  where  it  was  held  that  injuries  resulting  from  an 
assault  by  a  drunken  stranger  upon  an  employee  engaged  at  his  work 
on  the  highway  did  not  arise  out  of  the  employment.  That  was  a 
quite  different  situation  from  the  one  now  before  us.^ 


DONOVAN'S    CASE. 
Supreme  Judicial  Court  of  Massachusetts,   1914. 

[Reported  217  Mass.  76.) 

Sheldon,  J.  The  contest  here  is  between  Donovan,  an  employee 
of  one  McGreevey,  and  an  insurance  company  which  had  insured 
McGreevey  under  the  provisions  of  St.  1911,'  c.  751,  Part  V,  §  3,  as 
amended  by  St.  1912,  c.  571,  §  17.  The  point  in  dispute  is  whether 
Donovan's  injury  arose  out  of  and  in  the  course  of  his  employment, 
within  the  meaning  of  Part  II,  §  1,  of  the  act  of  1911  above  cited.  See 
McNicol's  case,  215  Mass.  497.  This  must  be  decided  upon  the  facts 
found  by  the  Industrial  Accident  Board  in  its  review  of  the  report  of 
the  committee  of  arbitration.  St.  1911,  c.  751,  Part  III,  §§  5,  10,  16, 
as  amended  by  St.  1912,  c.  571,  §§  10,  13,  15. 

Donovan  was  employed  by  McGreevey  in  cleaning  out  catch  basins 
at  a  place  about  two  miles  from  his  home.  It  had  been  and  was  his  cus- 
tom, in  common  with  other  employees  and  with  the  knowledge  and  con- 
sent of  his  employer,  to  ride  to  and  from  the  vicinit\-  of  the  catch  basins 

1  The  remainder  of  the  opinion  is  omitted.  —  Ed. 


/ 


400  DONOVAN'S    CASE.  [CHAP.  IV. 

in  a  wagon  furnished  by  his  employer,  the  wagon  meeting  the  employees 
on  the  street  and  the  employer  being  notified  if  any  of  the  employees 
failed  to  report  for  work  at  the  beginning  of  the  day.  The  wagon  was 
at  the  service  of  the  employees  at  the  end  of  the  day,  and  they  might 
ride  in  it  back  to  the  employer's  barn  if  they  wished.  Donovan  was  in- 
jured while  so  riding  in  this  wagon  at  the  end  of  his  day's  work,  and  the 
board  has  found  that  his  transportation  on  the  wagon  was  "  incidental 
to  his  employment,"  and  "  therefore"  arose  "out  of  and  in  the  course  of 
said  employment."  The  language  of  this  last  finding  is  a  little  obscure; 
but  we  treat  it,  as  both  counsel  and  also  the  Superior  Court  have  treated 
it,  as  being  an  inference  that  Donovan's  injury  arose  out  of  and  in  the 
course  of  his  employment,  drawn  from  the  other  facts  stated,  including 
the  fact  that  the  transportation  was  "incidental  to  his  employment." 
The  question  to  be  decided  is  therefore  whether  this  inference  could  be 
drawn  from  those  facts;  for  the  facts  themselves  now  cannot  be  inquired 
into.     St.  1912,  c.  571,  §  14. 

There  have  been  several  decisions  in  England  as  to  when  and  how  far 
an  employee  can  be  said  to  have  been  in  the  employ  of  his  nraster,  while 
traveling  to  and  from  his  work  in  a  vehicle  or  means  of  conveyance 
provided  by  the  latter,  and  how  far  injuries  received  in  such  a  con- 
veyance can  be  said  to  have  arisen  out  of  and  in  the  course  of  the 
employment.  Many  of  these  decisions  have  been  cited  and  discussed 
by  Professor  Bohlen  in  25  Harvard  Law  Re\aew,  401,  d  seq.  From 
his  discussion  and  the  cases  referred  to  by  him,  and  from  the  later  de- 
cisions of  the  English  courts,  the  rule  has  been  establislied,  as  we  con- 
sider in  accordance  with  sound  reason,  that  the  employer's  liability  in 
such  cases  depends  upon  whether  the  conveyance  has  been  provided 
by  him,  after  the  real  beginning  of  the  employment,  in  compliance  with 
one  of  the  implied  or  express  terms  of  the  contract  of  employment,  for 
the  mere  use  of  the  employees,  and  is  one  which  the  employees  are  re- 
quired, or  as  a  matter  of  right  are  permitted,  to  use  by  virtue  of  that 
contract.  See  Davies  v.  Rhymney  Iron  Co.,  16  T.  L.  R.  329;  Holmes  v. 
Great  Northern  Railway,  [1900]  2  Q.  B.  409;  Whitbread  v.  Arnold,  9^^ 
L.  T.  103;  Cremins  r.  Guest,  Keen  &  Nettlefolds,  [1908]  1  K.  B.  469; 
Gane  v.  Norton  Hill  Colliery  Co.,  [1909]  2  K.  B.  539;  Hoskins  v.  J.  Lan- 
caster, 3.  B.  W.  C.  C.  476;  Parker  r.  Pout,  105  L.  T.  493;  Walters  v. 
Staveley  Coal  &  Iron  Co.,  105  L.  T.  119,  and  4  B.  W.  C.  C.  89  and  303; 
Greene  v.  Shaw,  [1912]  2  Ir.  430,  and  5  B.  W.  C.  C.  530;  Mole  v. 
Wadworth,  6  B.  W.  C.  C.  128;  Edwards  v.  Wingham  Agricultural  Im- 
plements Co.,  [1913]  3  K.  B.  596,  and  6  B.  W.  C.  C.  511;  Walton  v. 
Tredegar  Iron  &  Coal  Co.  6  B.  W.  C.  C.  592. 

The  finding  of  the  Industrial  Accident  Board  that  Donovan's  trans- 
portation was  "incidental  to  his  employment"  fairly  means,  in  the 
connection  in  which  it  was  used,  tiuit  it  was  one  of  the  incidents  of  his 
employment,  that  it  was  an  accessory,  collateral  or  subsidiary  part  of 
contract  of  employment,  something  added  to  the  principal  part  of  that 


SECT.  IV.]  MILLIKEN's    CASE.  401 

contract  as  a  minor,  but  none  the  less  a  real  feature  or  detail  of  the  con- 
tract. Whatever  has  been  uniform]\'  done  in  the  execution  of  such 
a  contract  by  both  of  the  parties  to  it  well  may  be  regarded  as  having 
been  adopted  by  them  as  one  of  its  terms.  Especially  is  this  so  where 
none  of  the  provisions  of  the  contract  has  been  shown  by  either  party, 
but  everything  is  left  to  be  inferred  from  their  conduct.  That  was  the 
reasoning  of  this  court  in  such  cases  as  Gillshannon  v.  Stony  Brook  Rail- 
road, 10  Cush.  228,  231.  McGuirk  r.  Shattuck,  160  Mass.  45,  47;  Boyle 
V.  Columbian  Fire  Proofing  Co.,  182  Mass.  93,  98;  Kilduff  v.  Boston 
Elevated  Railway,  195  Mass.  307;  and  Feneff  v.  Boston  &^Maine  Rail- 
road, 196  Mass.  575,  577. 

Accordingly  we  are  of  the  opinion  that  the  Industrial  Accident  Board 
had  the  right  to  draw  the  inference  that  Donovan's  injury  arose  out  of 
and  in  consequence  of  his  employment. 

Under  our  own  decisions,  Donovan  at  the  time  of  his  injury  was  in 
the  emplo\-  of  McGreevey  and  was  a  fellow  servant  with  the  driver  of 
the  wagon.  O'Brien  v.  Boston  &  Albany  Railroad,  138  Mass.  387. 
See  also  the  cases  last  above  cited.  It  is  not  easy  to  suppose  that  the 
Legislature  intended  that  one  who  was  under  the  disabilities  of  a  servant 
should  be  excluded  arbitrarily  from  the  benefits  which  it  undertook  to 
give  to  all  emplo\ees.  The  provisions  of  the  act  are  to  be  construed 
broadly  rather  than  narrowly.     Coakley's  Case,  216  Mass.  71,  73. 

The  decree  of  the  Superior  Court  ^  must  be  affirmed;  and  it  is 

So  ordered. 


MILLIKEN'S    CASE. 
Supreme  Judicial  Court  of  Massachusetts,   1914. 

[Reported  216  Mass.  293.] 

LoRiNG,  J.  This  is  an  appeal  from  a  decree  of  the  Superior  Court 
[Morton,  J.]  based  on  a  decision  of  the  Industrial  Accident  Board 
ordering  the  insurer  to  pay  $1,950  for  the  death  of  Frank  T.  Milli- 
ken.     The  facts  found  by  the  board  were  these: 

Milliken,  at  the  time  of  his  death  in  October,  1912,  and  for  some 
twenty-seven  years  before  that  time,  had  been  a  driver  in  the  employ 
of  A.  Towle  and  Company,  the  insured,  who  were  teamsters.  Some 
four  or  five  years  before  his  deatJi  Milliken,  in  the  course  of  his  employ- 
ment, fell  from  his  wagon,  striking  on  his  head.  This  caused  inter  alia 
an  impairment  of  memory.  One  afternoon  in  July,  1912  (three  months 
before  his  death),  Milliken  lost  his  memory  while  driving  his  employers' 
wagon  in  Boston,  and  for  half  an  hour  was  unable  to  renember  where 
he  was  or  to  identify  the  streets  in  which  he  was  dri^'ing,  although  they 

^  The  decree  was  made  by  Pierce,  J.     The  insurer  appealed. 


402  milliken's  case.  [chap.  i\^ 

were  streets  with  which  he  was  "thoroughly  famihar."  During  the 
day  of  October  8,  1912,  from  a  similar  failure  of  memory  Milliken  did 
not  call  for  packages,  as  his  duties  required,  and  reported  (contrary  to 
the  fact)  that  he  had  not  received  them  because  they  were  not  ready. 
Thereupon  he  was  directed  to  drive  his  wagon  to  his  employers'  stable 
in  Charlestown  to  be  put  up  for  the  night.  Driving  his  wagon  to  the 
stable  for  the  night  was  part  of  Milliken's  regular  work.  This  order 
was  given  to  Milliken,  at  about  five  o'clock  in  the  afternoon  at  his 
employers'  Boston  office  in  Matthews  Street  near  Post  Office  Square. 
"At  some  place  between  Post  Office  Square  and  the  stable  in  Charles- 
town  he  was  seized  with  such  a  loss  of  memory  and  mental  faculties 
that  he  was  unable  to  recognize  streets  and  places,  and  on  account 
of  such  disordered  mental  condition  he  became  lost  and  unable 
to  direct  the  horse  to  the  stable."  About  eleven  o'clock  that  night 
Milliken  was  seen  driving  the  wagon  in  a  private  way  in  Burlington 
and  was  helped  back  to  the  public  highway,  whereupon  he  drove  away 
in  the  direction  of  Lowell.  At  this  time  Milliken  would  not  speak. 
At  about  six  o'clock  the  following  morning  Milliken  was  found  lying  in 
a  swamp  in  Woburn  and  —  with  the  exception  of  his  head  —  covered 
with  mud  and  water.  His  hat  was  found  on  the  "adjacent  road" 
some  two  hundred  feet  away,  and  the  horse  and  wagon  were  found  "  by 
the  side  of  said  road  about  half  a  mile  distant  in  the  direction  of  Boston." 
Milliken  was  taken  to  a  hospital  at  Woburn,  where  he  died  on  October 
14,  without  recovering  his  memory.  He  "  spoke  in  a  delirium  only  of 
looking  for  his  horse."  The  cause  of  his  death  was  pneumonia,  brought 
on  by  cold  and  exposure  while  lying  in  the  swamp. 

The  Industrial  Accident  Board  found:  "That  the  loss  of  memory 
with  which  the  employee,  Milliken,  was  seized  was  not  in  itself  a  fatal 
disorder,  and  that  he  would  not  have  met  his  death  as  he  did  but  for  the 
horse  and  wagon  and  his  effort  to  get  them  to  the  stable." 

The  dependent's  contention  is  that  Milliken's  death  was  caused  by 
pneumonia  brought  on  by  his  falling  into  the  swamp  and  lying  there  all 
night;  that  under  these  circumstances  falling  into  the  swamp  and  lying 
there  all  night  was  a  personal  injury  which  caused  his  death;  and  for 
this  she  relies  on  Alloa  Coal  Co.  v.  Drylie,  50  S.  L.  R.  350,  and  Kelly  v. 
Auchenlea  Coal  Co.,  48  S.  L.  R.  768.' 

The  fact  that  Milliken  "would  not  have  met  his  death  as  he  did  but 
for  the  horse  and  wagon  and  his  effort  to  get  them  to  the  stable,"  goes 
no  farther  than  to  show  that  the  personal  injury  suffered  by  Milliken 
was  a  personal  injury  "in  the  course  of  his  employment." 

The  difficulty  in  the  case  arises  from  the  provision  that  the  personal 
injury  must  be  one  "arising  out  of"  as  well  as  one  "in  the  course  of  his 
employment." 

It  was  held  in  McNicol's  case,  215  Mass.  497,  that  the  provision 
limiting  the  personal  injuries  for  wliicli  compensation  is  to  be  made  to 
those  "arising  out  of"  the  employee's  employment  means  that  the  na- 


SECT.  IV.]  SUNDINE'S   CASE.  403 

ture  and  conditions  of  the  employment  must  be  such  that  the  per- 
sonal injury  which  in  fact  happened  was  one  likely  to  happen  to  an 
employee  in  that  employment.  In  that  case  it  was  said  that  there  must 
be  a  "causal  connection"  between  the  employment  and  the  injury. 

There  is  nothing  in  the  employment  of  driving  a  wagon  which  makes 
it  likely  that  the  employee  will  alight  from  his  wagon,  wander  to  and  fall 
into  a  swamp,  and  lie  there  all  night.  The  distinction  between  the  case 
at  bar  and  a  case  within  this  clause  of  the  act  is  well  brought  out  by 
what  is  suggested  by  a  remark  of  the  majority  of  the  Industrial  Acci- 
dent Board.  If  the  horse  driven  by  Milliken  had  run  away  and  INIilli- 
ken  had  been  thereby  thrown  out  and  killed,  the  personal  injury  in  fact 
suffered  in  that  case  would  have  been  one  which  from  the  nature  of  his 
employment  would  be  likely  to  arise,  and  so  would  be  one  "  arising  out 
of  his  [the  employee's]  employment."  But  as  we  have  said,  there  is 
nothing  in  the  employment  of  driving  a  wagon  which  makes  it  likely 
that  the  employee  will  alight  from  his  wagon,  wander  to  and  fall  into  a 
swamp,  and  lie  there  all  night.  Sneddon  v.  Greenfield  Coal  &  Brick  Co., 
47  S.  L.  R.  337,  much  relied  on  here  by  the  dependent,  is  another  case 
which  brings  out  the  distinction.  There  a  miner  got  lost  in  the  under- 
ground ways  of  a  mine  and  was  killed  by  the  exhaust  steam  from  an 
engine  which  was  not  fenced  off.  See  also  Wicks  r.  Dowell  &  Co., 
[1905]  2  K.  B.  25. 

We  find  nothing  in  the  other  cases  relied  on  by  the  dependent  which 
calls  for  notice. 

It  seems  plain  that,  if  Milliken's  death  was  caused  by  a  personal  in- 
jury, it  was  the  one  which  happened  some  four  or  five  years  before  the 
occurrence  here  complained  of  and  before  the  workmen's  compensation 
act  was  passed.  At  that  time  he  fell  from  his  wagon  and  striking  on  his 
head  suffered  as  a  result  "an  impairment  of  his  memory." 

The  decree  of  the  Superior  Court  appealed  from  is  reversed,  and  a 
decree  should  be  entered  declaring  that  the  dependent  has  no  claim 
against  the  insurer. 

So  ordered. 


SUNDINE'S   CASE. 
Supreme  Judicial  Court  of  Massachusetts,  1914. 

[Reported  218  Mass.  1.] 

Sheldon,  J.  It  is  provided  by  statute  (St.  1911,  c.  751,  Part  III, 
§  17)  that  "if  a  subscriber  enters  into  a  contract,  written  or  oral,  with 
an  independent  contractor  to  do  such  subscriber's  work  .  .  .  and  the  as- 
sociation would,  if  such  work  were  executed  by  employees  immediately 
employed  by  the  subscriber,  be  liable  to  pay  compensation  under  this 
act  to  those  employees,  the  association  shall  pay   to  such  employees 


404  sundine's  case.  [chap.  iv. 

any  compensation  which  would  be  payable  to  them  under  this  act" 
if  the  independent  contractor  were  a  subscriber.  By  the  word  "as- 
sociation" is  meant  the  Massachusetts  Employees'  Insurance  Associ- 
ation, Part  V,  §  2,  of  the  same  act;  and  this  insurance  company  is 
under  the  same  liability  that  the  association  would  have  been.  St.  1912, 
c.  571,  §  17.  It  follows  that  the  petitioner  has  the  same  rights  against 
this  insurance  company  as  if  it  had  directly  insured  her  employer  Olsen. 

The  insurer  does  not  deny  this,  but  it  contends  that  the  petitioner's 
injury  did  not  arise  "out  of  and  in  the  course  of"  her  employment  within 
the  meaning  of  Part  II,  §  1,  of  the  act  first  referred  to.  This  is  because 
she  was  injured  at  about  noon,  after  she  had  left  the  room  in  which  she 
worked  for  the  purpose  of  getting  a  lunch,  and  upon  a  flight  of  stairs 
which,  though  affording  the  only  means  of  going  to  and  from  her  work- 
room, was  yet  not  under  the  control  either  of  Olsen,  her  employer,  or 
of  F.  L.  Dunne  and  Company,  for  whose  work  Olsen  was  an  independ- 
ent contractor. 

The  first  contention,  that  she  was  not  in  the  employ  of  Olsen  while 
she  was  going  to  lunch,  cannot  be  sustained.  Her  employment  was 
by  the  week.  It  would  be  too  narrow  a  construction  of  the  contract 
to  say  that  it  was  suspended  when  she  went  out  for  this  merely  tempo- 
rary purpose  and  was  rex-ived  only  upon  her  return  to  the  workroom. 
It  was  an  incident  of  her  employment  to  go  out  for  this  purpose.  Boyle 
V.  Columbian  Fire  Proofing  Co.,  182  Mass.  93,  102.  The  decisions  upon 
similar  questions  under  the  English  act  are  to  the  same  effect.  Blovelt 
V.  Sawyer,  [1904]  1  K.  B.  271,  which  went  on  the  ground  that  the  dinner 
hour,  though  not  paid  for,  was  yet  included  in  the  time  of  employment. 
Moore  v.  Manchester  Liners,  3  B.  W.  C.  C.  527,  where  the  House  of 
Lords  reversed  the  decision  of  the  Court  of  Appeal,  reported  in  [1909] 

1  K.  B.  417,  and  held,  following  the  dissenting  opinion  of  Moulton,  L.  J., 
that  a  temporary  absence  by  permission,  though  apparently  of  longer 
duration  than  would  have  been  likely  in  the  case  before  us,  did  not 
suspend  the  employment,  and  that  an  injury  occurring  during  such  a 
temporary  absence,  arose  "out  of  and  in  the  course  of"  the  employ- 
ment.    Gane  v.  Norton  Hill  Colliery  Co.,  2  B.  W.  C.  C.  42,  and  [1909] 

2  K.  B.  539.  Keenan  v.  Flemington  Coal  Co.,  40  Sc.  L.  R.  144.  Mac- 
Kenzie  v.  Coltness  Iron  Co.,  41  Sc.  L.  R.  6. 

Nor  do  we  regard  it  as  decisive  against  the  petitioner  that  she  was  in- 
jured while  upon  stairs  of  which  neither  Olsen  nor  F.  L.  Dunne  and 
Company  had  control,  though  they  and  their  employees  had  the  right 
to  use  them.  These  stairs  were  the  only  means  available  for  going  to 
and  from  the  premises  where  she  was  employed,  the  means  which  she 
practically  was  invited  l)y  Olsen  and  by  F.  L.  Dimne  and  Company  to 
use.  In  this  respect,  the  case  resembles  Moore  r.  Manchester  Liners, 
ubi  supra;  and  that  case,  decided  under  the  English  act  before  the  pas- 
sage of  our  statute,  must  be  regarded  as  of  great  weight.  McNicol's 
case,  215  Mass.  497,  499.     It  is  true  that  before  the  passage  of  St.  1911, 


SECT.  IV.]  DRAGOVICH  V.   IROQUOIS  IRON  CO.  405 

c.  751,  the  petitioner  could  not  have  held  her  employer  for  this  injury. 
Hawkes  v.  Broadwalk  Shoe  Co.,  207  Mass.  117.  But  that  now  is  not 
a  circumstance  of  much  importance;  for  one  of  the  purposes  of  our  re- 
cent legislatures  was  to  increase^the  right  of  employees  to  be  compen- 
sated for  injuries  growing  out  of  their  employment. 

It  was  a  necessary  incident  of  the  employee's  employment  to  use  these 
stairs.  We  are  of  opinion  that  according  to  the  plain  and  natural 
meaning  of  the  words  an  injury  that  occurred  to  her  while  she  was  so 
using  them  arose  "out  of  and  in  the  course  of"  her  employment.  The 
decree  of  the  Superior  Court  must  be  affirmed. 

So  ordered. 


DRAGOVICH   V.   IROQUOIS  IRON  CO. 
StJPREME  Court  of  Illinois,  1915. 

[Reported  269  III.  478.] 

Carter,  J.  This  was  a  proceeding  to  recover  compensation,  under 
the  Workmen's  Compensation  Act  of  1911,  for  the  death  of  Frank  M. 
Markusic.  .  .  } 

The  evidence  shows  that  the  deceased,  Frank  M.  Markusic,  had 
been  in  the  employ  of  appellant,  the  Iroquois  Iron  Company,  for  a 
number  of  years,  doing  different  kinds  of  work  about  appellant's  plant, 
sometimes  in  the  buildings  and  sometimes  on  the  dock.  On  December 
24,  1912,  he  was  working  in  the  shop  of  appellant,  assisting  in  making 
some  safety  appliances.  Max  Gornick,  with  two  or  three  other  men, 
was  working  in  the  same  shop  repairing  steam  pipes  under  the  floor, 
and  for  this  purpose  some  of  the  steel  plates  forming  the  floor  had  been 
taken  up,  thereby  lea\ang  an  opening  or  hole,  in  which  was  accumulated 
a  quantity  of  hot  water  from  which  were  escaping  vapor  and  steam, 
making  it  impossible  for  a  person  approaching  the  opening  from  where 
Markusic  was  working,  to  see  the  hole.  Gornick,  while  engaged  in  this 
work,  slipped  and  fell  into  the  opening  and  into  the  hot  water  and 
screamed  for  help,  crying  out  in  Croatian,  which  was  the  native  lan- 
guage of  Markusic:  "For  good  God!  pull  me  out,  people!  pull  me  out!  " 
At  this  cry,  the  testimony  is,  Markusic  dropped  his  work  and  ran 
toward  the  place  from  which  the  cry  came.  The  steam  and  vapor 
coming  from  the  water  so  obscured  the  opening  that  he  fell  into  the 
hole  and  was  so  badly  scalded  that  he  died  from  the  effects  two  days 
'later.  Gornick  was  being  assisted  out  by  others  just  as  Markusic  fell 
in.    The  distance  from  where  deceased  was  working  to  the  place  where 

1  Part  of  the  opinion,  dealing  with  other  points,  is  omitted.  —  Ed. 


406 


STEWART   V.   LOXGHURST. 


[chap.  IV, 


the  accident  occurred  is  estimated  by  witnesses  to  be  from  100  to  150 
feet.  In  traveling  between  the  two  points  he  would  have  to  go  about 
50  or  75  feet  south  and  then  about  50  feet  west  around  a  boiler.  The 
place  of  the  accident  could  not  be  seen,  apparently,  from  the  place 
where  deceased  worked. 

Section  1  of  the  act  requires  that  compensation  may  be  had  for 
accidental  injm-ies  sustained  by  any  employee  "arising  out  of  and  in 
the  course  of  the  employment,"  etc.  From  the  facts  already  stated, 
counsel  for  appellant  argues  that  it  was  not  shown  that  the  accident 
arose  out  of  and  in  the  course  of  deceased's  employment.  This 
pro\'ision  of  the  statute  has  never  been  construed  by  this  court  but  some- 
what similar  acts  have  been  construed  by  the  courts  in  other  jurisdic- 
tions. Under  these  authorities  it  is  clear  that  it  is  the  duty  of  an 
employer  to  save  the  lives  of  his  employees,  if  possible,  when  they  are  in 
danger  while  in  his  employment,  and  therefore  it  is  the  duty  of  a  work- 
man in  his  employ,  when  occasion  presents  itself,  to  do  what  he  can 
to  save  the  lives  of  his  fellow-employees  when  all  are  at  the  time  work- 
ing in  the  line  of  their  employment.  Any  other  rule  of  law  would  be 
not  only  inhuman  but  unreasonable  and  uneconomical,  and  would,  in 
the  end,  result  in  financial  loss  to  employers  on  account  of  injuries  to 
their  employees.  From  every  point  of  view  it  was  the  duty  of  the  de- 
ceased, as  a  fellow-employee,  in  the  line  of  his  duty  to  his  emplo.yer, 
to  attempt  to  save  the  life  of  his  fellow-employee  under  the  circum- 
stances here  sho\vn.  That  he  failed  in  his  attempt  does  not  in  the 
slightest  degree  change  the  legal  situation.  The  reasoning  of  the  fol- 
lowing cases  tends  to  support  this  conclusion:  Rees  v.  Thomas,  1  B.  W. 
C.  C.  9;  Matthews  v.  Bedworth,  1  id.  124;  London  and  Edinburgh 
Shipping  Co.  V.  Brown,  42  Scottish  L,  R.  357. 


STEWART  V.   LONGHURST. 
House  of  Lords,  1917. 

[Reported  [1917]  A.  C.  249.] 

Lord  F'inlay,  L.  C.  My  Lords,  this  is  an  appeal  against  the  decision 
of  the  Court  of  Appeal  allowing  the  claim  for  compensation  under  the 
AVorkmen's  Compensation  Act,  1906,  in  respect  of  the  death  of  the 
respondent's  husband,  Herbert  Longhurst. 

The  appellants  are  engineers  and  ship  repairers,  and  were  engaged 
in  effecting  repairs  to  the  barge  Forward,  which  was  lying  in  the  South- 
West  India  Docks,  and  the  deceased,  who  was  a  carpenter,  was  in 
their  employment  on  this  work.     The  docks  are  under  the  control  of 


SECT.  IV.]  STEWART   i'.   LONGHURST.  407 

the  Port  of  London  Authority:  they  are  not  open  to  the  pubUe  for 
traffic,  but  the  appellants  and  their  workmen  had  the  permission  of  the 
Authority  to  pass  through  the  docks  on  their  way  to  and  from  the  barge 
on  which  they  were  at  work.  The  deceased  left  the  barge  on  November 
9,  1915,  a  few  minutes  before  8  p.m.  In  the  darkness  he  missed  his  way 
while  passing  along  the  quay,  fell  into  the  lock  and  was  drowned.  The 
county  court  judge  disallowed  the  claim,  holding  that  when  the 
deceased  got  off  the  barge  on  to  the  quay  the  relationship  of  master  and 
servant  ceased  as  completely  as  if  he  had  got  off  the  barge  on  to  the 
high  road.  On  appeal  by  the  respondent  to  the  Court  of  Appeal  the 
judgment  of  the  county  court  judge  was  reversed,  and  it  was  directed 
that  there  should  be  an  award  of  £300  to  be  apportioned  among  the 
dependents  of  the  deceased.  (The  amount  of  compensation  was 
agreed  by  the  parties.) 

The  employers  appeal  to  this  House  and  ask  that  the  decision  of 
the  county  court  judge  in  their  favour  should  be  restored.  * 

It  was  contended  in  support  of  the  appeal  that  the  finding  of  ^:he 
county  court  judge  in  a  case  of  this  nature  should  not  be  interfered 
with.  It  is,  however,  quite  plain  that  the  finding  of  the  county  court 
judge  was  not  on  fact  but  on  law.  He  considered  that,  as  a  matter 
of  law,  the  accident  did  not  occur  in  the  course  of  the  employment, 
on  the  ground  that,  in  his  view,  the  employment  ceased  when  the 
deceased  reached  the  quay.  In  my  opinion  this  view  is  erroneous. 
It  has  been  established  by  a  series  of  decisions  that  employment  for 
the  purposes  of  the  Workmen's  Compensation  Act  may  in  many  cases 
be  regarded  as  existing  before  the  actual  operations  of  the  workman 
have  begun,  and  that  it  may  continue  to  exist  after  the  actual  work  has 
ceased ;  for  instance,  if  a  workman  is  employed  in  a  factory  the  employ- 
ment normally  would  begin  as  soon  as  the  workman  has  entered  the 
premises  for  the  purpose  of  his  work  and  continue  until  he  leaves  them 
after  the  actual  work  is  done. 

There  was  a  decision  in  your  Lordship's  House  on  March  16,  1905, 
in  the  case  of  Cross,  Tetley  &  Co.  v.  Catterall  (unreported),  which  has 
been  repeatedly  cited,  but  has  not  yet  been  reported.  The  case  and 
appendix  and  the  transcript  of  the  judgments  are  in  the  library  of 
your  Lordships'  House.  In  that  case  the  colliery  in  which  the  man 
was  engaged  was  approached  by  a  bridge  built  by  the  employers  over 
a  canal  for  the  convenience  of  their  workmen,  and  the  workman  fell 
into  the  canal  from  the  bridge  while  going  to  his  work.  Lord  Halsbury 
said  in  giving  his  opinion:  "I  do  not  agree  that  his  employment  only 
l:)egins  at  the  moment  he  strikes  the  coal  with  his  pick.  I  think  the 
man  was  really  in  the  employment  the  moment  he  reached  the  bridge. 
He  was  doing  something  on  his  master's  behalf;  that  is  to  say,  he  was 
on  his  way  to  the  colliery  for  the  purpose  of  working." 

The  decision  in  that  case  established  that  the  employment  may 
begin  as  soon  as  the  workman  has  reached  his  employer's  premises  or 


408  STEWART  V.    LONGHURST.  [CHAP.   IV. 

the  means  of  access  thereto.  And  in  the  same  way  the  employment 
may  be.  considered  as  continuing  until  the  workman  has  left  his  em- 
ployer's premises. 

The  case  would  be  different  if  the  workman  was  at  the  time  of  the 
accident  on  the  public  highway  on  his  way  to  or  from  his  work.  His 
employment  cannot  be  considered  as  having  begun  if  he  is  merely 
in  transit  in  the  public  street  or  road  to  or  from  his  employer's  premises. 
Of  course,  if  his  employment  were  of  a  kind  which  is  pui-sued  on  the 
highway  he  might  be  in  the  course  of  his  employment  while  there,  but 
I  am  speaking  of  cases  in  which  he  is  in  the  public  way  merely  in  exercise 
of  the  public  right  of  passage  there  on  his  way  to  or  from  his  employer's. 

The  present  case  belongs  to  a  class  of  cases  where  the  thing  on  which 
the  workman  is  employed  is  lying  in  a  dock  or  other  open  space  to 
which  he  obtains  access  only  for  the  purposes  of  his  work.  Actual 
ownership  or  control  by  the  employer  of  the  spot  where  the  accident 
occurred  is  not  essential.  The  workman  comes  there  on  his  way  to  and 
from  his  work,  and  he  may  be  regarded  as  in  the  course  of  his  employ- 
ment while  passing  through  the  dock  or  other  open  space  to  and  from 
the  spot  where  his  work  actually  lies.  Such  passage  is  within  the 
contemplation  of  both  parties  to  the  contract  as  necessarily  incidental 
to  it. 

The  case  of  Cook  v.  Owners  of  S.S.  Montreal  (6  B.  W.  C.  C.  220) 
was  much  relied  on  by  the  appellants,  but  seems  to  me  to  have  no 
application.  That  was  the  case  of  a  sailor  who  had  been  paid  off  on 
board  his  ship  at  the  end  of  the  voyage,  and  from  the  ship  got  on  to 
a  "dolphin,"  or  floating  stage,  connected  with  the  quay  by  fixed  steps 
and  fell  into  the  water  between  the  "dolphin"  and  the  quay.  Accord- 
ing to  the  view  taken  of  the  facts  in  that  case,  he  had  reached  the 
shore  before  the  accident  took  place,  and  on  that  view  of  the  facts  it 
was  held  that  his  employment  had  terminated.  It  may  be  that  a 
different  view  might  have  been  taken  of  the  facts  as  regards  the  ter- 
mination of  the  workman's  transit  from  the  ship  to  the  shore,  but 
that  is  immaterial.  On  the  view  taken  of  the  facts  the  case  has  no 
bearing  on  the  present  one.  In  the  subsequent  case  of  Webber  v. 
Wansborough  Paper  Co.  ((1913)  6  B.  W.  C.  C.  583;  on  appeal  [1915] 
A.  C.  51),  the  Court  of  Appeal,  apparently  in  deference  to  Cook  v. 
Owners  of  S.S.  Montreal,  decided  against  the  claim,  but  their  decision 
was  reversed  in  the  House  of  Lords  on  the  ground  that  the  ladder 
from  which  the  accident  took  place  formed  the  ordinary  means  of 
access  to  the  ship,  so  that  the  accident  was  held  to  take  place  in  the 
course  of  the  employment. 

There  is,  however,  a  decision  in  the  Court  of  Appeal  in  Holness  v. 
McKay  &  Davis  ([1899]  2  Q.  B.  319),  which  appears  to  me  to  be  in 
conflict  with  the  view  which  I  have  abo\e  indicated.  In  that  case 
contractors  were  ballasting  a  siding  which  could  be  reached  only  by 
going  for  some  distance  through  the  prenuses  of  the  railway  company. 


SECT.    IV.]  STEWART   V.    LONGHURST.  409 

On  a  foggy  morning  a  workman,  while  proceeding  to  his  work,  got  on 
to  the  main  hne  and  was  run  over  and  killed.  A.  L.  Smith,  L.  J.,  and 
Vaughan  Williams,  L.  J.,  held  that  the  accident  did  not  arise  in  the 
course  of  the  employment,  the  former  pointing  out  that  there  was  an 
entire  absence  of  control  by  the  employer  over  the  premises  where  the 
accident  occurred.  Romer,  L.  J.,  differed  from  his  colleagues,  and  in 
the  course  of  his  judgment  made  the  following  observations  (ibid. 
328)  : 

"The  deceased  man  was  in  the  employment  of  the  appellants, 
who  had  contracted  with  the  railway  company  to  do  certain  work 
at  a  spot  substantially  surrounded  by  lines  of  railway,  and  the  access 
to  which  was  not  unattended  with  danger.  By  their  contract  with 
the  railway  company  the  appellants  had  to  provide  access  for  their 
workmen  at  their  own  cost,  and  accordingly  they  directed  the  men 
that  they  must  cross  the  lines  to  get  to  their  work.  The  men  w^ere 
bound  by  the  necessities  of  their  employment  and  as  part  of  its  duties 
and  dangers  to  cross  the  lines  and  to  have,  through  the  appellants, 
a  special  right  or  licence  from  the  railway  company  to  cross  them; 
that  special  right  or  licence  being  given  by  implication.  When  the 
workmen  began  to  cross  the  lines,  they  were  acting  under  this  right 
or  licence  obtained  for  them  by  the  appellants;  they  were  doing  some- 
thing which  they  were  specially  bound  to  do  under  their  contract  of 
employment,  and  which  they  could  not  lawfully  do  but  for  that  con- 
tract. Under  these  circumstances  I  think  that  the  employment  in  this 
case  substantially  began  when  the  deceased  began  to  act  upon  the 
implied  right  or  licence  to  cross  the  lines.  I  am  of  opinion,  therefore, 
that  the  county  court  judge  was  justified  in  holding  that  the  accident 
occurred  in  the  course  of  the  deceased's  employment.  I  think  also 
that  his  finding  was  correct  as  to  the  circumstances  under  which  the 
accident  occurred.  The  deceased  had  been  told  to  go  to  the  Waterloo 
gate;  it  was  his  nearer  and  more  convenient  way  to  get  to  his  work,  and 
it  was  in  evidence  that  he  was  never  known  to  use  the  other  gate.  On 
the  facts,  I  should  come  to  the  conclusion  that  he  did  go  by  the  Waterloo 
gate,  and  that  he  lost  his  way  owing  to  the  fog,  and  that  the  accident 
arose  directly  by  reason  of  his  being  obliged  to  cross  the  dangerous 
zone  of  lines  in  order  to  get  to  his  work.  I  think,  therefore,  that  the 
deceased  man  was  at  the  time  of  the  accident  acting  in  the  course  of  his 
employment  and  that  the  accident  arose  out  of  his  employment.  The 
cases  show  that  the  Court  is  not  bound  by  a  hard  and  fast  line  to  con- 
sider that  a  workman  is  not  acting  in  the  course  of  his  employment 
until  he  actually  begins  the  work  which  he  has  to  do.  To  my  mind  the 
present  case  is  like  that  of  a  workman  whose  work  lies  in  a  particular 
part  of  a  large  factory,  and  who  in  order  to  get  to  it  has  to  go  through 
the  rest  of  the  factory  and  meets  with  an  accident  while  so  going.  It  is 
said  that  there  is  a  distinction  because  all  the  parts  of  the  factory  are 
under  the  control  of    the  same  employer;  but   1   consider  that  case 


410  MATTER  OF  SAENGER  V.   LOCKE.  [CIL\P.  IV. 

analogous  to  the  present;  for  the  railway  company  had  given  the  con- 
tractor the  right  to  bring  his  men  to  their  work  across  the  lines,  and  the 
contractor  had  in  a  sense  a  right  of  control  over  the  lines  by  virtue  of 
which  alone  the  men  used  the  lines.  In  principle,  therefore,  I  think  that 
this  case  cannot  be  distinguished  from  that  of  the  factory.  This  case 
is  not  like  that  of  an  injury  received  on  the  public  highway  by  a  man 
while  going  to  work,  when  of  course  the  employer,  having  nothing 
directly  to  do  with  the  highway  or  its  user  by  the  men,  would  not 
be  liable.  Looking  at  the  facts,  I  think  that  the  very  able  judgment 
of  the  county  court  judge  was  correct,  and  that  this  appeal  ought 
to  be  dismissed." 

If  the  judgment  of  the  majority  of  the  Court  of  Appeal  in  that 
case  were  right,  it  would  seem  to  me  to  follow  that  the  appeal  in  the 
present  case  should  succeed.  In  my  opinion,  however,  the  judgment 
of  the  majority  was  erroneous,  and  Romer,  L.  J.,  in  the  passage  which 
I  have  quoted  correctly  states  the  principles  of  law  upon  the  subject. 
The  principles,  as  stated  by  him,  are,  in  my  judgment,  as  applicable 
to  the  present  case  as  they  were  to  that  with  which  he  was  dealing,  and 
in  my  opinion  this  appeal  should  be  dismissed  with  costs. 

Lords  Loreburn,  Dunedin,  Atkinson  and  Buckmaster  concurred. 

Order  of  the  Court  of  Appeal  affirmed  and  appeal  dismissed  with  costs. 


MATTER  OF   SAENGER  v.   LOCKE. 
Court  of  Appeals  of  New  York,  1917. 

[Reported  220  N.  Y.  556.] 

Andrews,  J.  Felix  A.  Locke  was  engaged  in  the  millinery  business 
and  in  the  making  of  hats  and  feathers  in  New  York  city.  This  was  a 
hazardous  employment.     Edna  Saenger  was  one  of  his  employees. 

On  February  11th,  1916,  while  working  in  the  millinery  department 
she  had  some  difference  with  her  boss  with  regard  to  her  work.  As  a 
result  she  became  nervous  and  hysterical  and  fainted. 

Two  of  her  co-employees  rushed  to  get  water  and  ammonia.  They 
returned,  one  with  a  glass  of  ammonia  and  one  with  a  glass  of  water. 
In  some  way  these  glasses  became  mixed  and  the  ammonia  was  thrown 
into  the  face  of  P^dna  Saenger,  causing  the  injuries  for  which  an  award 
was  made  her. 

Clearly  the  injuries  so  received  by  her  were  accidental  and  arose  in 
the  course  of  her  employment  but  they  ditl  not  arise  out  of  such  em- 
ployment. 


SECT.  IV.]  MATTER   OF  DALY   V.   BATES.  411 

If  she  had  fainted  because  of  fumes  present  in  the  work  room  and 
so  falhng  had  injured  herself,  a  different  question  would  have  been 
presented;  but  the  claimant  fainted  because  of  her  physical  condition 
and  even  if  her  faintness  might  have  been  said  to  have  resulted  from 
her  quarrel  with  her  boss  with  regard  to  her  work,  the  fainting  was  in 
no  proper  sense  connected  with  the  accident. 

The  accident  was  caused  by  a  co-employee  mistaking  the  two  glasses 
containing  ammonia  and  water,  not  because  the  ammonia  was  exposed 
and  an  error  arose  as  to  its  nature  or  use.  The  employee  who  obtained 
it  knew  precisely  what  it  was. 

The  employer  had  not  furnished  the  ammonia  as  medicine  for  his 
employees  nor  had  he  authorized  in  any  way  its  use  by  them  as  a 
medicine. 

A  fainting  such  as  is  shown  in  this  case  and  help  such  as  was  gi^en 
is  not  a  natural  incident  to  the  business.  It  has  no  more  connection 
with  it  than  if  a  physician  had  been  called  in  and  having  been  handed 
glasses  of  ammonia  and  water  had  made  the  same  mistake. 

In  Matter  of  De  Fihppis  v.  Falkenberg  (170  App.  Div.  15.3;  affd., 
219  N.  Y.  581)  an  employee  was  injured  by  being  struck  in  the  eye  by 
scissors  thrust  through  a  partition  by  a  fellow-servant  as  a  practical 
joke.    Such  an  injury  did  not  arise  out  of  the  employment. 

Where  injuries  result  from  quarrels  between  fellow-servants  the  rule 
is  that  where  the  quarrel  arose  out  of  matters  pertaining  to  the  busi- 
ness, then  the  accident  arises  out  of  the  employment.  Where  the 
quarrel  is  an  independent  affair  having  no  connection  with  the  master's 
work,  then  it  does  not.     (Matter  of  Heitz  v.  Ruppert,  2 IS  N.  Y.  148.) 

As  is  said  in  the  case  last  cited,  the  injury  must  be  received  as  a 
natural  incident  of  the  work.  It  must  l)e  one  of  the  risks  connected 
with  the  employment,  flowing  thereform  as  a  natural  consequence  and 
directly  connected  with  the  work.     Such  is  not  this  case. 

The  order  of  the  Appellate  Di^'ision  should  be  reversed  and  the 
claim  dismissed,  with  costs  in  Appellate  Di\dsion  and  in  this  court 
against  the  industrial  commission. 

HiscocK,  Ch.  J.,  Chase,  Hogan,  Cardozo  and  Pound,  JJ.,  con- 
cur; McLaughlin,  J.,  not  voting. 

Order  reversed,  etc. 


MATTER  OF   DALY  v.   BATES. 
Court  of  Appeals  of  New  York,  1918. 

[Reported  224  .V.  Y.  126.] 

HoGAN,  .1.  The  employer  is  engaged  in  conducting  a  hotel  in  the 
city  of  New  York.  The  claimant  was  employed  as  a  laundress  in  the 
hotel.    Her  hours  of  employment  were  usually  from  7:15  a.  m.  to  5:00 


412  MATTER   OF  DALY  V.   BATES.  [CHAP.  IV. 

or  5:30  p.  m.  As  compensation  for  her  labor  claimant  received  as  wages 
a  money  consideration,  hoarding  and  lodging  and  the  privilege  after 
the  regular  working  hours  of  the  day  to  use  the  plant  of  the  employer 
to  do  her  laundry  work. 

On  March  12,  1917,  the  claimant  finished  her  work  at  half  past  four 
o'clock  in  the  afternoon.  During  the  evening,  while  she  was  engaged 
in  the  laundry  doing  her  personal  laundry  she  sustained  injury  to  her 
wrist.  The  industrial  commission  determined  the  injury  was  acci- 
dental and  arose  out  of  and  in  the  course  of  her  emplo\Tnent  and  made 
an  award  therefor.  Upon  appeal  the  determination  of  the  commis- 
sion was  affirmed  by  the  Appellate  Division. 

In  Matter  of  Heitz  v.  Ruppert  (218  N.  Y.  148,  151)  we  sought  to 
establish  general  principles  applicable  to  a  construction  of  subdivision 
7  of  section  3  of  the  Workmen's  Compensation  Law,  a  recitation  of 
which  will  bear  repetition  here:  "the  statute  does  not  pro\'ide  an  in- 
surance against  every  accident  happening  to  the  workman  while  he  is 
engaged  in  the  employment.  The  words  'arising  out  of  and  in  the 
course  of  employment'  are  conjunctive,  and  relief  can  be  had  under 
the  act  only  when  the  accident  arose  both  '  out  of '  and  '  in  the  course 
of  employment.  The  injury  must  be  received  (1)  while  the  workman 
is  doing  the  duty  he  is  employed  to  perform,  and  also  (2)  as  a  natural 
incident  of  the  work.  It  must  be  one  of  the  risks  connected  with  the 
employment,  flowing  therefrom  as  a  natural  consequence  and  directly 
connected  with  the  work." 

Applying  the  principles  stated  to  the  case  at  bar,  we  are  led  to  the 
conclusion  that  the  injury  to  claimant  did  not  arise  from  or  in  the 
course  of  her  employment.  She  was  employed  to  perform  the  laundry 
work  of  her  employer.  Such  employment  was  to  be  performed  within 
estal)lished  hours.  On  the  day  in  question  claimant  had  completed 
her  labors  for  her  employer  some  few  hours  before  the  happening  of 
the  accident.  Her  duty  to  her  employer  did  not  require  her  presence 
in  the  laundry  again  until  the  following  morning.  The  accident  oc- 
curred in  the  evening  while  she  was  engaged  in  doing  work  personal  to 
herself.  At  that  time  she  was  not  engaged  in  the  performance  of  any 
duty  she  was  employed  to  perform,  or  directly  connected  with  or  in- 
cidental to  the  work  of  the  employer,  but  her  labor  there  was  entirely 
disassociated  with  the  work  of  her  employer.  The  fact  that  she  was 
permitted  to  use  the  laundry  for  her  personal  benefit  did  not  change 
the  relation  of  the  parties.  (Brienen  v.  Wisconsin  Public  Service 
Comm.,  163  N.  W.  Rep.  182.) 

Had  the  claimant  remained  in  her  room  in  the  hotel  and  engaged 
her  time  in  mending  her  clothing,  and  while  so  engaged  met  with  an 
accident  by  reason  of  using  a  scissors,  it  could  scarcely  be  held  that  such 
injury  would  arise  out  of  and  in  the  course  of  her  employment  or  was 
incidental  thereto.  (Matter  of  De  Filippis,  170  App.  Div.  153;  affd., 
219  N.  y.  581;  Hallett's  Case  [Mass.,  May  28,  1918],  119  N.  E.  Rep. 


SECT.  IV.]  •  MATTER   OF  DALY  V.   BATES.  413 

673;  Griffith  v.  Robbins,  Court  of  x\ppeal,  England,  December  14,  \ 

1916,  10  IJutterworth's  Workmen's  Compensation  Cases,  92.) 

In  the  latter  case  a  girl  employed  as  a  parlor  maid  was  sitting  in  the 
kitchen,  occupying  her  spare  time  in  mending  a  rent  in  her  dress.  Hear- 
ing a  bell  rung  by  her  mistress,  she  left  the  darning  needle  in  her  dress 
and  went  to  answer  the  bell.  In  walking  to  the  door  she  managed  in 
some  way  to  drive  the  needle  into  her  knee,  breaking  it  off  short,  caus- 
ing her  serious  injury.  An  award  was  made  in  her  favor,  which  was 
reversed  by  the  Court  of  Appeal  of  England,  and  it  was  there  held 
there  was  no  e\adence  to  show  that  the  injury  was  due  to  any  risk  in- 
cidental to  her  employment  and  that  the  accident  did  not  arise  out  of 
her  employment. 

The  order  of  the  Appellate  Division  and  the  determination  of  the 
State  industrial  commission  must  be  reversed  and  the  claim  dismissed, 
with  costs  in  this  court  and  in  the  Appellate  Division  against  the 
State  industrial  commission. 

HiscocK,  Ch.  J.,  Chase,  Pound,  McLaughlin,  Crane  and  An- 
drews, JJ.,  concur. 

Order  reversed,  etc. 


414  REX    V.   COMPTON.  [cHaP.   V. 


CHAPTER   V. 
PERMITTED   ACTS. 


SECTION  I. 

Duti/  to  Act. 


REX    V.   COMPTON. 

Assizes.     1347. 

[Reported  Liber  Assisarnm,  97,  pi.  55.] 

H.  DE  CoMPTON  was  indicted,  &c.,  that  he  feloniously  killed  H.  Vescy 
at  C.  on  a  certain  day  in  the  fourteenth  year  of  the  present  King,  and 
also  for  that  he  received  one  R.,  who  was  outlawed  for  felony,  know- 
ing, &c.,  for  which  he  was  now  arraigned. 

H.  said  that  said  H.  V.  died  in  the  ninth  year  of  the  present  King; 
and  that  said  H.  V.  and  another  were  indicted  in  the  ninth  year  of  the 
present  King,  before  Sir  T.  de  Rokeby,  Sheriff  of  York,  of  divers  felo- 
nies, when  the  sheriff  assigned  the  said  J.  [H.?]  de  C.  by  his  commission 
(which  he  exhibited  to  the  court)  to  arrest  and  take  the  said  H.  and 
the  other  tliieves  ;  and  the  said  H.  de  C.  witli  others  came  to  the  said 
place,  and  there  found  the  said  H.  and  the  other  thieves,  and  showed 
thera  their  warrant,  which  they  had  to  arrest  tliem,  and  ordered  them 
to  surrender;  and  they  would  not  surrender,  but  defended  themselves, 
and  killed  and  wounded  divers  persons,  and  in  this  fight  H.  was  killed. 
And  we  do  not  think  that  our  Lord  the  King  ought  to  impeach  us  of 
his  death. 

Thorp,  C.  J.  All  shall  be  found  out  b}'  the  juiy.  (And  he  told  them 
all  that  he  had  said.)  Wherefore  we  ask  you  whether  H.  V.  died  in 
the  ninth  year  of  the  present  king  and  not  in  the  fourteenth,  as  the 
indictment  is,  and  if  there  was  no  otlier  II.  V.  whom  he  killed  in  the 
fourteenth  year,  and  also  if  he  might  have  taken  him  without  killing 
him,  so  that  he  killed  him  of  his  own  malice,  &c.,  and  if  you  find  that, 
speak  of  his  lands  and  goods. 

The  jur}'  said  that  H.  had  gone  (as  he  said),  and  that  there  was  no 
other  H.  V.  than  that  one,  &c.,  and  that  he  could  not  have  taken  him 
in  another  wa}'. 

Thorp.  They  have  acquitted  you  of  this  charge,  and  we  acquit  3-ou. 
And  I  sa}'  well  to  you  tliat  when  a  man  kills  another  b}-  his  warrant 
he  ma\-  well  avow  the  fact,  and  we  will  freel}'  acquit  hiui  without  wait- 


SECT.  I.]  HEKBEKD'S  CASE.  415 

ing  for  the  King's  pardon  b\'  Iiis  charter  in  this  case.  And  in  man}' 
otlier  cases  a  man  may  kill  another  without  impeachment,  as  if  thieves 
come  to  rob  a  man,  or  to  commit  buro;larv  in  his  house,  lie  raav  safelv 
kill  them,  if  he  cannot  take  them.  And  note,  iiow  it  was  with  a 
gaoler  who  came  to  the  gaol  with  a  hatchet  in  his  hand,  and  just  then 
the  prisoners  had  broken  their  irons,  and  were  all  ready  to  have  killed 
him,  and  they  wounded  him  sorely,  but  with  the  hatchet  in  his  hand 
he  killed  two,  and  then  escaped,  &c.  And  it  was  adjudged  in  this 
case  b}-  all  the  council  that  he  would  not  have  done  well  otherwise,  &c. 
Likewise  he  said  that  every  person  might  take  thieves  in  the  act  of 
larceny,  and  felons  in  the  act  of  felony,  and  if  the\-  would  not  sur- 
render peaceably,  but  stood  on  their  defence,  or  fled,  in  such  case  he 
might  kill  them  without  blame,  &c. 


i-  HERBERD'S    CASE. 

King's  Bench,   1457. 

[Reported  Y.  B.   .35  H.  6,  .57,  pi.  3.] 

A  WOMAN  brings  an  Appeal  for  the  death  of  her  husband,  in  the  King's 
Bench,  against  William  Herberd,  Knt.,  Walter  Devers,  Knt.,  and 
several  others.  And  one  of  the  defendants  comes  and  says  that  the 
wife  should  not  have  tliis  appeal,  for  he  says  that  at  the  Sessions  of  the 
peace  held  at  Hertford  on  a  certain  day  &c.,  before,  &c.,  it  was  presented 
by  twelve  lawful  men  sworn  to  inquire  for  the  King,  &c.,  that  one  J. 
W.  of  Hertford  had  feloniously  killed  one  J.  Vowant  &c.,  and  that  the 
husband  of  the  plaintiif,  for  whose  death  she  has  brought  this  appeal, 
abetted  and  comforted  him  in  committing  the  said  felony,  &c.,  by 
force  of  which  a  warrant  issued  to  the  sheriff  to  take  the  body  of  the 
said  J.  W.  and  of  this  woman's  husband,  by  force  of  which  the  sheriff 
returned  the  warrant  served,  and  set  them  at  the  bar;  by  force  of  which 
the  said  J.  W^.  was  arraigned  for  the  said  felony  and  pleaded  not  guilty, 
and  was  found  guilty,  and  by  force  of  this  he  was  hanged.  And  then 
the  woman's  husband  was  arraigned  and  pleaded  not  guilty,  and  was 
found  guilty,  and  was  sentenced  to  be  hanged :  all  which  he  is  ready  to 
aver,  and  prays  that  it  be  allowed.  And  as  to  the  felony  he  pleads  not 
guilty,  &c. 

Littleton.  This  is  no  plea;  he  ought  to  have  pleaded  not  guilty 
generally  for  you  cannot  justify  a  felony.'  .  .  . 

Wangford.  In  cases  where  it  appears  by  the  law  that  one  has  power 
to  kill  another  he  may  justify  the  killing.  As,  if  a  sheriff  or  marshal 
of  this  bench  be  commanded  by  authority  of  law  to  execute  a  man  and 
he  executes  him:  if  an  appeal  be  brought  against  him,  he  may  justify, 

*  Part  of  the  argument  is  omitted.  —  Ed. 


416  TUCK    V.    BKLILES.  [CHAP.    V. 

since  it  appears  of  record  that  he  had  power  to  kill  him ;  but  if  a  stranger 
kill  him,  he  could  not  justify,  since  it  appears  of  record  that  he  had  no 
power  to  kill  him.  So  here  he  has  not  alleged  that  he  had  any  power  to 
kill  him,  but  like  the  greatest  stranger  in  the  world,  and  therefore  he 
cannot  have  advantage  of  the  matter  of  record. 

Markam,  J.  The  record  makes  no  mention  who  has  power  to  kill 
him,  for  the  entry  is  only  sus.  per  coll.  and  makes  no  mention  to  whom 
it  is  delivered,  as  to  the  sheriff  or  to  another  to  make  execution;  so  it 
does  not  appear  who  has  power  to  kill  him. 

Bingham,  J.  If  a  sheriff  be  charged  to  hang  a  man  and  he  cuts  off 
his  head,  I  tell  you  it  is  no  felony,  because  he  had  the  power  to  kill  him. 

Pole,  J.  Yes  sir,  it  is  felony,  for  he  had  no  power  to  kill  him,  ex- 
cept according  to  the  judgment,  and  if  he  does  it  otherwise  he  does  it 
as  a  stranger;  and  therefore  it  is  felony. 


TUCK  V.  BELILES. 
Court  of  Appeals  of  Kentucky. 

[Reported  153  Ky.  848.] 

HoBSON,  C.  J.  On  December  22,  1911,  three  warrants  were  issued 
by  the  judge  of  the  Butler  quarterly  court  against  R.  E.  Tuck,  in  which 
he  was  charged  with  a  breach  of  the  peace,  wilfully  shooting  his  pistol 
in  the  streets  of  Morgantown  and  assault  and  battery  on  his  wife.  The 
warrants  were  placed  in  the  hands  of  C.  V.  Beliles,  who  is  the  sheriff  of 
Butler  County.  Beliles  placed  them  in  the  hands  of  two  of  his  deputies 
who  undertook  to  execute  them.  They  telephoned  Beliles  that  they 
needed  help,  and  he  and  another  deputy  then  went  to  assist  them  in 
making  the  arrest.  When  they  reached  the  house  where  Tuck  was,  in 
making  the  arrest  one  of  them  shot  Tuck  through  the  left  arm,  inflict- 
ing a  serious  injury.  He  brought  his  suit  against  the  sheriff  on  his 
bond  to  recover  for  his  injury. 

According  to  his  testimony  on  the  trial,  he  was  at  his  home,  and 
went  upstairs  and  was  sitting  on  a  box  examining  some  tickets  which 
he  had  when  he  heard  somebody  walk  in.  He  looked  around  and  a  man 
shot  his  pistol  and  hollered  at  him,  "Throw  up  your  hands."  The 
two  deputies  came  up  the  stairs  and  stood  near  him  while  the  sheriff 
said  to  him,  "They  want  you  up  at  the  judge's  office."  He  said,  "I 
guess  not,  I  have  fixed  all  of  this  with  Mr.  Bradley."  One  of  the  dep- 
uties said,  "Bring  him  on,"  and  he  replied,  "You  just  keep  your 
mouth  out  of  this."  x\t  this  the  other  deputy  threw  up  his  pistol  and 
shot  him.  Mr.  Bradley  was  the  county  attorney.  He  testified  that 
Tuck  came  to  his  house  that  morning  and  that  he  told  Tuck  to  get  on 
his  mule  and  go  up  to  see  his  brother  and  straighten  up  and  he  would 


SECT.  I.J  TUCK    V.    BELILES.  417 

do  the  best  he  could  for  him  after  he  straightened  up;  that  Tuck  said 
that  he  was  not  going  an^^where,  and  that  he  was  going  to  see  Bill  Tuck, 
and  was  going  to  kill  Ed  Waddle  before  sunset;  that  he  would  kill  them 
as  fast  as  they  came  along.  He  also  told  the  county  attorney  that  he 
would  kill  the  officers,  and  that  he  was  not  going  to  be  arrested.  The 
county  attorney  told  the  sheriff  what  he  had  said  when  he  gave  him 
the  warrants  and  told  him  to  be  careful.  The  two  deputies  who  first 
went  to  the  house  testified  that  they  saw  him  as  they  approached  the 
house,  and  that  he  ran  into  the  house,  and  that  they  then  learned  that 
he  had  arms,  and  telephoned  the  sheriflF.  They  did  nothing  more  until 
the  sheriff  came.  The  sheriif's  statement  as  to  what  occurred  when 
he  got  there  is  in  substance  that  he  found  the  door  of  the  house  fas- 
tened, and  after  calling  to  Tuck  repeatedly  and  telling  him  that  he  had 
always  been  his  friend  and  wished  no  trouble,  he  forced  the  door  open; 
that  he  could  not  find  Tuck  on  the  first  floor  of  the  house  and  after 
looking  through  this,  went  upstairs ;  that  he  was  not  to  be  seen  anywhere 
upstairs;  that  when  he  got  up  there  he  called  out  as  he  had  below  re- 
peatedly and  finally  he  struck  a  match,  and  looking  over  into  a  closet 
found  Tuck  hidden  there;  that  when  he  found  him  Tuck  said," I  want 
you  to  go  away  from  here,  I  am  not  going  to  be  arrested."  He  said 
"Elmwood,  I  have  been  a  friend  to  you,"  and  that  Tuck  replied  with 
an  oath,  and  started  to  make  a  rush  on  them  sa;\'ing  he  would  kill  every 
one  of  them;  that  after  calling  on  him  to  stop,  he  drew  his  pistol,  and 
fired,  when  he  could  not  stop  him  in  any  other  way.  The  testimony 
of  the  sheriff  is  corroborated  not  only  by  the  three  deputies  who  were 
present  but  by  a  number  of  persons  in  the  neighborhood  who  testified 
to  hearing  Tuck  cursing  and  threatening  the  officers  that  he  would 
kill  them.  On  this  evidence  the  jury  found  for  the  defendants.  The 
plaintiff  appeals. 

It  is  insisted  for  the  plaintiff  that  the  sheriff  is  Hable  because  he  did 
not  read  the  warrants  to  Tuck;  but  Tuck's  own  testimony  shows  that 
he  understood  very  well  what  he  was  arrested  for,  and  he  knew  that  he  \ 
was  resisting  the  sheriff  and  his  deputies.  He  knew  the  sheriff  very  well  ' 
and  knew  the  deputies.  He  knew  the  offenses  he  was  charged  with, 
and  knew  the  purpose  for  which  they  had  come  to  arrest  him.  It  is 
true  the  warrants  were  not  read  to  him,  but  he  did  not  give  the  officers 
any  opportunity  to  read  the  warrants.  He  resisted  arrest  as  soon  as 
they  found  him  and  according  to  the  testimony  of  the  officers  immedi- 
ately began  an  attack  upon  them. 

The  court  by  his  instruction  in  suiostance  told  the  jury  that  they 
should  find  for  the  plaintiff',  unless  they  believed  from  the  evidence 
that  the  plaintiff'  resisted  arrest  with  force,  and  in  that  event  the 
officers  had  the  right  to  use  such  force  as  appeared  to  them  in  the  exer- 
cise of  a  reasonable  discretion  to  be  necessary  to  overcome  the  force 
offered  by  Tuck  and  protect  themselves  at  his  hands,  and  if  they  used 
no  more  force  than  was  necessary  or  apparently  necessary  for  this 


\ 


418  PEOPLE    V.   WARREN.  [CHAP.  V. 

purpose,  they  should  find  for  the  defendants.  The  instructions  appear 
to  us  to  state  fairly  the  law  of  the  case.  While  an  officer  has  no  right 
to  kill  a  man  in  order  to  arrest  him  for  a  misdemeanor,  it  is  his  duty  to 
meet  force  with  force,  and  to  use  such  force  as  is  necessary  to  make  the 
arrest.  If  in  using  such  force,  he  is  himself  placed  in  peril,  he  may  use 
such  force  as  is  necessary  for  his  self-protection.  (Read  v.  Com.,  125 
Ky.  126;  Stevens  v.  Com.,  124  Ky.  32.)  The  officer  is  armed  with  the 
authority  of  the  law.  It  is  the  dut}'  of  all  good  citizens  to  respect  and 
obey  him.  If  an  officer  could  not  meet  force  with  force,  desperadoes 
could  never  be  arrested.  It  is  the  duty  of  the  officer  to  execute  his 
process,  and  whfen  he  is  resisted  he  must  stand  his  ground  and  meet 
force  with  force.  If  the  proof  for  the  defendant  is  true,  Tuck's  con- 
duct was  entirely  without  excuse. 

The  evidence  of  Tuck's  threats,  made  on  that  morning,  and  his  re- 
peated declarations  that  he  would  not  be  arrested,  were  competent 
to  show  his  state  of  mind,  and  these  threats  having  been  communicated 
to  the  officers,  proof  of  them  was  admissible  in  their  behalf  to  show  the 
grounds  upon  which  they  acted.  On  the  whole  case  we  find  no  sub- 
stantial error  in  the  proceedings.  The  verdict  of  the  jury  is  sustained 
by  the  evidence. 

Judgment  affirmed. 


PEOPLE  V.  WARREN. 
Supreme  Court  of  New  York,  1843. 

[Reported  5  Hill,  440.] 

Certiorari  to  the  Oneida  general  sessions,  where  the  defendant 
was  con\'icted  of  an  assault  and  battery  upon  one  Johnson,  a  constable. 
Johnson  arrested  the  defendant  on  a  warrant  issued  by  the  inspectors 
of  election  of  the  city  of  Utica  for  interrupting  the  proceedings  at  the 
election  by  disorderly  conduct  in  the  presence  of  the  inspectors. 
(1  R.  S.  137,  §  37.)  The  warrant  was  regular  and  sufficient  upon  its 
face.  The  defendant  resisted  the  officer,  and  for  that  assault  he  was 
indicted.  The  defendant  offered  to  prove  that  he  had  not  been  in  the 
presence  or  hearing  of  the  inspectors  at  any  time  during  the  election, 
and  that  Johnson  knew  it.  The  court  excluded  the  e\'idence,  and  the 
defendant  was  convicted.  He  now  moved  for  a  new  trial  on  a  bill  of 
exceptions. 

Per  Curiam.  Although  the  inspectors  had  no  jurisdiction  of  the 
subject  matter,  yet  as  the  warrant  was  regular  upon  its  face,  it  was  a 
sufficient  authority  for  Johnson  to  make  the  arrest,  and  the  defendant 
had  no  right  to  resist  the  officer.  The  knowledge  of  the  officer  that  the 
inspectors  had  no  jurisdiction  is  not  important.    He  must  be  governed 


SECT.  I.]  OYSTEAD    V.    SHED,  419 

and  is  protected  by  the  process,  and  cannot  be  affected  by  anything 
which  he  has  heard  or  learned  out  of  it.  There  are  some  dicta  the  other 
way;  but  we  have  held  on  several  occasions  that  the  officer  is  protected 
by  process  regular  and  legal  upon  its  face,  whatever  he  may  have  heard 
going  to  impeach  it. 


OYSTEAD   V.   SHED. 
Supreme  Judicial  Court  of  Massachusetts,  1816. 

[Reported  13  Ma^s.  520.] 

Trespass  for  breaking  and  entering  the  plaintiff's  dwelling  house, 
taking  and  carrying  away  his  goods,  etc. 

The  defendant  Shed  justified  as  a  deputy  sheriff;  and  the  others, 
as  his  assistants,  pleaded  severally.  The  questions  in  the  case  arose 
on  the  replication  to  the  third  plea  by  them  respectively  pleaded,  in 
which  plea  each  of  the  said  other  defendants  sets  out  at  large  a  capim 
awarded  against  one  Chase,  delivered  to  Shed,  an  officer  ha\'ing 
authority  to  serve  the  same,  and  alleges  that  the  said  officer  being 
about  to  arrest  Chase,  he  fled  into  the  house  of  the  plaintiff,  who, 
upon  a  demand  by  Shed  for  leave  to  enter  and  arrest  him,  refused 
admission  into  the  house  and  shut  the  outer  door  thereof;  whereupon 
Shed  opened  a  window,  entered  the  house,  and  arrested  Chase;  and 
that  the  defendant,  being  required  by  Shed,  entered  the  house  by  the 
door,  which  was  then  opened,  etc. 

The  replication,  after  protesting  that  the  said  cajnas  was  never 
awarded,  etc.,  alleges  that  Chase  was  at  the  time,  and  had  been  for 
a  long  time  before,  a  lodger  and  boarder  in  the  house  of  the  plaintiff, 
and  was  quietly  taking  his  repose  there  as  one  of  his  family,  when 
the  officer  forcibly  entered,  etc.,  and  then  traverses  the  flight  of  Chase, 
as  set  forth  in  the  bar. 

To  this  replication  there  is  a  special  demurrer. 

Parker,  C.  J.^  .  .  .  The  fact  alleged  in  the  replication  is,  that  Chase 
was  quietly  reposing  in  the  plaintiff's  house,  being  a  lodger  and  boarder 
there  when  the  officer  entered.  Is  this  of  itself  an  answer  to  the  bar, 
which  avers  that  the  officer  being  about  to  arrest  Chase,  he  fled  into 
the  house? 

This  depends  upon  the  relation  which  Chase  had  to  the  family  of 
the  plaintiff,  for  it  is  very  clear  that  if  the  plaintiff,  or  one  of  his  family, 
had  fled  into  the  house  to  avoid  an  intended  arrest,  the  officer  would 
have  been  liable  in  trespass  for  entering  the  house  forcibly  in  pursuit 
of  him.  It  would  not  be  so,  if  an  arrest  had  been  actually  made,  and 
the  flight  had  taken  place  upon  an  escape. 

^  Part  of  the  opinion,  discussing  a  question  of  pleading,  is  omitted.  —  Ed. 


420  STATE    V.   MAYOR    AND   ALDKRMEN    OF    KNOXVILLE.      [CHAP.  V. 

The  authorities  do  not  clearly  show,  what  persons  are  considered  as 
belonging  to  the  family  of  a  householder,  and  so  having  a  right  to  pro- 
tection under  his  castle. 

The  very  learned  judges  Foster,  Hale,  and  Coke,  in  treating  of  the 
inviolability  of  dwelling  houses,  say  that  the  outer  doors  or  windows 
shall  not  be  forced  by  an  officer,  in  the  execution  of  ci\'il  process  against 
the  occupier  or  any  of  his  family,  who  ha\e  their  domicil  or  ordinary 
residence  there:  but  that  the  house  shall  not  be  made  a  sanctury  for 
other  persons:  so  that,  if  a  stranger,  whose  ordinary  residence  is  else- 
where, upon  a  pursuit,  take  refuge  in  the  house  of  another,  the  house 
is  not  his  castle;  and  the  officer  may  break  open  the  doors  or  windows 
in  order  to  execute  his  process :  and  if  one,  upon  escape  after  an  arrest, 
flee  into  his  own  house,  it  shall  not  protect  him,  etc.  According  to 
these  principles,  not  only  the  children  and  the  domestic  servants  of 
the  occupier  are  of  his  family,  and  so  entitled  to  protection;  but  also 
permanent  boarders,  or  those  who  have  made  the  house  their  home, 
may  properly  be  considered  as  a  part  of  the  family. 

The  purpose  of  the  law  is,  to  preserve  the  repose  and  tranquillity 
of  families  within  the  dwelling  house:  and  these  would  be  as  much 
disturbed  by  a  forcilile  entry  to  arrest  a  boarder  or  a  servant,  who  have 
acquired,  by  contract  express  or  implied,  a  right  to  enter  the  house 
at  all  times,  and  to  remain  in  it  as  long  as  they  please,  as  if  the  object 
were  to  arrest  the  master  of  the  house  or  his  children.  A  stranger,  or 
perhaps  a  visitor,  would  not  enjoy  the  same  protection :  for  as  they  have 
acquired  no  right  to  remain  in  the  house,  if  the  occupant  should  refuse 
admission  to  the  officer,  after  his  purpose  and  his  authority  were  made 
known,  the  law  would  consider  him  as  conspiring  with  the  party  pur- 
sued, to  screen  him  from  arrest,  and  would  not  allow  him  to  make  his 
house  a  place  of  refuge. 


STATE  V.   MAYOR   AND   ALDERMEN   OF   KNOXVILLE. 

Supreme  Court  of  Tennessee.     1883. 

[Reported  12   Lea,  146.] 

Freeman,  J.,  delivered  the  opinion  of  the  court.^ 

It  appears  from  this  record  tliat  in  the  latter  part  of  the  year  1882, 
and  first  of  1883,  the  small-pox,  as  an  epidemic,  prevailed  to  a  con- 
siderable extent.  The  city  of  Knoxville,  as  well  as  the  county,  thought 
it  their  duty,  through  their  authorized  agencies,  to  take  active  measures 
to  reUeve  as  well  as  prevent  the  spread  of  the  disease  botli  in  the  city 
and  the  surrounding  country.  To  this  end  a  small-pox  hospital  was 
established  at  the  fair-grounds,  about  two  miles  from  the  city,  with  suita- 

^  Part  of  the  opinion  is  omitted. 


SECT.  I.]      STATE    V.   MAYOR   AND   ALDERMEN   OF    KNOXVILLE.  421 

ble  buildings  for  receiving  infected  patients,  and  two  phj'sicians,  Drs. 
Hudo-ins  and  Shaw,  employed,  the  one  by  tlie  city,  the  other  b\-  the 
count}',  to  attend  patients  surtering  with  the  disease.  Among  tlie  pre- 
cautionary measures  taken  to  prevent  the  spread  of  the  plague,  the 
clothing,  beds,  and  bedsteads  used  by  persons  who  had  the  disease,  and 
either  recovered  or  died,  were  directed  to  be  burnt,  no  doubt  under  the 
direction  of  the  attending  physicians.  This,  we  take  it,  was  done  regu- 
lai'lv  and  frequently  for  some  months,  as  often  as  occasion  required. 
The  fair-ground's  property  consisted  of  between  sixty  and  sixty-five 
acres  of  land,  the  building  being  witliin  this  property,  and  the  infected 
articles  burnt  on  these  grounds,  probably  in  pits  dug  for  the  purpose. 
The  burning  seems  to  have  been  some  four  hundred  yards  from  the 
nearest  houses,  but  there  appear  to  have  been  numerous  dwellings 
occupied  about  that  distan<.'e,  and  farther  off,  but  still  liable,  more  or 
less  to'be  affected  by  the  smoke  and  the  scent  from  the  burning  cloth- 
ing, etc.  That  this  at  times  was  more  or  less  offensive,  is  probable,  if 
not  certain.  For  a  nuisance,  the  result  of  this  burning  and  the  unpleas- 
ant effects  of  the  smoke  thus  generated  and  disseminated,  the  defendants 
are  indicted. 

The  jur}-  have  found  the  defendants  guilty,  and  on  the  facts,  that  is 
of  the  existence  of  the  smoke,  and  of  its  rendering  the  occupation  of 
the  houses  of  persons  living  hard  by  uncomfortable,  and  the  air  less 
pure  temporarily  tlian  otlierw^ise  would  have  been  the  case  from  the 
nature  of  their  location,  there  is  no  ground  on  which  this  court  could 
reverse  the  finding  of  facts  for  want  of  testimony  to  sustain  it. 

The  question  is,  whether  this  finding  was  under  a  correct  statement 
of  the  law  by  the  court  below,  and  whether  there  was  a  sufficient  justi- 
fication and  authority  for  what  was  done  ;  whether  his  Honor  gave 
defendants  the  benefit  of  the  rules  of  law  tending  to  show  such  justifi- 
cation and  authorit}'  for  their  acts,  which  are  not  of  themselves  denied 
or  serious!}'  controverted. 

The  proof  very  definitely  tended  to  show  that  burning  the  articles 
mentioned  was  the  best  means  known  of  preventing  the  spread  of  infec- 
tion, if  not  the  only  certain  means  of  doing  so,  that  it  was  the  uniform 
practice  in  hospitals  where  such  diseases  were  being  treated,  and  recog- 
nized as  the  accredited  mode  recommended  and  endorsed  b}'  the  best 
lights  of  the  medical  profession. 

If  this  be  so,  then  the  simple  question  is,  whether  parties  using  such 
means  so  accredited,  ui  good  faith,  shall  be  held  criminally  hable  if  they 
should  produce  temporary  inconvenience  to  other  parties  near  by  ;  for 
this  is  the  substance  of  the  request  refused  by  his  Honor. 

The  loss  to  the  individuals  was  only  a  temporary  one,  by  having  the 
air  for  a  time  impregnated  with  smoke,  ofljensive  though  it  was  ;  yet  if 
this  was  done  in  order  to,  and  did  reasonabl}'  tend  to,  prevent  the 
spread  of  a  loathsome  and  dangerous  disease,  b}'  which  the  lives  of 
from  twenty-five  to  fifty  per  cent  of  persons  attacked  are  liable  to  die,  as 
one  physician  swears  in  this  case,  then  it  is  too  clear  to  doubt  that  the 


422 


PEOPLE    V.    FITZGERALD. 


[chap.  V. 


interest  of  the  life  of  many  cannot  be  permitted  to  be  perilled  that  others 
ina_y  enjoy  the  air  untainted  by  smoke  from  clothing  infected  by  the 
disease  being  burned  at  a  reasonabl}-  safe  distance  from  their  dwellings. 
If  3-ou  may  rightfully  destro}-  the  house  in  which  a  man  dwells  in  order 
to  prevent  the  spread  of  a  fire  or  the  ravages  of  a  pestilence,  it  follows 
you  may  mnch  more  destroy  for  a  time  the  salubrit}'  of  the  air,  provided 
it  shall  tend  reasonably  to  the  result  demanded  by  the  public  interest. 

We  do  not  deem  it  necessary  to  enlarge  on  such  a  proposition. 

The  rule  applicable  to  such  a  case  is  that,  if  the  act  was  done  by 
public  authority  or  sanction,  and  in  good  faith,  and  was  done  for  the 
public  safety  and  to  prevent  the  spread  of  the  disease,  and  such  means 
used  as  are  usualh"  resorted  to  and  approved  by  medical  science  in  such 
cases,"  and  was  done  with  reasonable  care  and  regard  for  the  safet\'  of 
others,  then  the  parties  were  justified  in  what  they  did,  and  the  parties 
inconvenienced  could  not  complain,  nor  could  the  state  enforce  a  crimi- 
nal liabilitj'  for  results  of  temporary  inconvenience  or  unpleasantness 
that  accrue  from  the  use  of  such  proper  and  accredited  means  for  the 
safety  of  the  community  against  the  spread  of  disease. 

The  theory  of  his  Honor  is  the  opposite  of  this,  and  is  erroneous. 
Let  the  judgment  be  reversed  and  the  case  remanded  for  a  new  trial. 


PEOPLE  V.  FITZGERALD. 

Court  of  Appeals,  New  York,  1887. 

I 

[Reported  105  A^  1'.  146.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  fourth  judicial  department,  entered  upon  an  order  made  Jan- 
uary 11,  1887,  which  affirmed  a  judgment  of  the  Court  of  Oyer  and 
Terminer  of  the  county  of  Chemung,  entered  upon  a  verdict  con\dcting 
the  defendant  of  the  crime  of  body  stealing. 

The  facts,  as  stated  in  the  dissenting  opinion  of  Hardin,  J.,  in  the 
court  below,  are  as  follow^s:  General  Ir^^ne  died  in  the  city  of  San 
Francisco  on  the  night  of  November  12,  1882,  suddenly,  having  during 
the  day  been  out  gunning,  returning  to  his  home  in  the  evening,  after 
partaking  of  a  light  repast,  consisting  of  tea,  eggs,  cold  meat,  and 
bread  and  butter,  prepared  by  his  wife  Phnebe,  who  with  their  daugh- 
ter, Mrs.  INIerkle,  were  occupying  apartments  together.  Soon  after 
partaking  of  the  refreshments  he  became  distressed  and  made  com- 
plaints of  internal  pains.  The  daughter  left  for  a  physician,  and,  upon 
returning,  they  found  that  death  had  taken  place.  The  remains  were 
taken  that  night  to  the  rooms  of  an  undertaker  and  they  were  sub- 
sequently embalmed,  and  on  the  fourth  of  December  were  conveyed 


SECT.  1.]  PEOPLE    V.    FITZGERALD.  423 

by  the  widow  and  daughter  to  the  city  of  Elmira,  where  they  were 
interred  in  Woodlawn  Cemetery. 

About  a  year  after  the  death  inquiry  was  instituted  as  to  the  cause 
thereof,  and  the  defendant  employed  a  detective  named  Nealson,  who 
visited  the  city  of  Elmira,  and  returned  to  San  Francisco  and  made 
a  report  to  the  defendant.^ 

The  defendant  and  Nealson  \isited  the  office  of  Dr.  Reilly,  the  coro- 
ner of  the  county  of  Chemung,  and  held  a  conversation  in  regard  to 
the  circumstances  attending  the  death  of  the  deceased.  After  that 
interview  Coroner  Reilly  determined  to  proceed  in  the  premises.  He 
visited  Nathan  Baker,  superintendent  of  Woodlawn  Cemetery,  at  his 
house  and  said  to  him,  "That  he  had  evidence  to  satisfy  him  that  a 
wrong  had  been  perpetrated,  or  sufficient  to  warrant  him  in  making 
an  examination  of  the  body  of  General  Ir\ane.  .  .  .  That  he  had  suffi- 
cient grounds  of  acting  and  he  asked  Baker,  the  superintendent,  to 
act,"  showing  him  one  of  the  affidavits  and  stating  that  he  had  others. 
Thereupon  the  superintendent  determined  to  act  in  the  premises  and 
facilitate  the  proceedings  in  behalf  of  the  coroner.  Thereupon  direc- 
tions were  given  Abbott,  the  sexton,  to  open  the  grave  and  remove 
the  remains  to  the  vault  in  the  cemetery  for  the  purpose  of  an  examina- 
tion. 

Reilly,  the  coroner,  also  applied  to  Dr.  Wey  to  become  one  of  two 
physicians  to  make  the  examination,  and  on  the  evening  of  the  eighth 
of  April  Reilly  \asited  the  office  of  Wey,  with  Nealson,  avowing  that  he 
had  full  authority  in  the  premises  "to  conduct  an  examination  and 
have  an  examination  made  by  the  physicians."  The  hour  was  fixed 
for  an  examination  at  ten  the  next  morning  and  Reilly  informed  Wey 
that  he  would  "  notify  Dr.  Squires  .  .  .  and  we  might  expect  to  meet 
at  the  receiving  vault  in  Woodlawn  Cemetery"  at  ten  the  next  morn- 
ing. Accordingly  they  met  the  next  morning  at  the  recei\ang  vault 
in  Woodlawn  Cemetery,  where  the  physicians  found  Coroner  Reilly 
and  Nealson  and  Baker  and  Abbott.  The  body  was  found  lying  in  a 
coffin  or  casket  on  the  floor  of  the  receiving  vault.  The  coroner  made 
a  minute  of  the  nature  of  the  covering  of  the  coffin  and  its  handles  and 
the  plate  and  the  descriptions  of  every  other  matter  connected  there- 
with. Drs.  Wey  and  Squires  raised  the  head  and  shoulders  of  the  body 
and  after  carefully  scrutinizing  the  face  and  the  coroner  making  a 
minute  thereof,  a  careful  examination  was  made  of  the  head,  and  the 
stomach  and  duodenum,  and  certain  other  parts  of  the  body  were  re- 
moved and  delivered  to  Dr.  Reilly,  who  placed  them  in  a  vessel  he  had 
prepared  for  that  purpose. 

After  the  examination  the  coroner  went  over  to  the  house  of  Abbott, 
the  sexton,  in  the  cemetery  grounds,  where  Baker  suggested  the  pro- 
priety of  having  a  coroner's  jury  and  Wey  replied:  "It  is  too  late  for 
such  a  proceeding." 

^  The  statement  of  facts  has  been  abridged.  —  Ed. 


424  PEOPLE    V.   FITZGERALD.  [CHAP.  V. 

No  Jury  was,  in  fact,  sworn  to  hokl  an  inquest.  The  remains  were 
recoffined  and  returned  to  the  grave,  except  the  parts  removed  there- 
from as  already  stated. 

Rapallo,  J.  The  facts  of  this  extraordinary  case  are  fully  stated 
in  the  dissenting  opinion  of  Hardin,  J.,  at  General  Term.  We  should 
content  ourselves  with  concurring  in  that  opinion,  were  it  not  that  it 
simply  orders  a  new  trial  for  errors  in  the  charge,  for  refusals  to  charge, 
while  we  think  that  it  should  have  gone  farther  and  have  held  that  the 
facts  of  the  case  did  not  establish  a  crime  punishable  under  the  statute 
against  body  stealing  (Penal  C^ode,  §311),  under  which  the  prisoner 
was  indicted  and  convicted,  and  which  is  in  the  following  words: 
"Sec.  311.  A  person  who  removes  the  dead  body  of  a  human  being, 
or  any  part  thereof,  from  a  grave,  vault,  or  other  place  where  the  same 
has  been  buried,  or  from  a  place  where  the  same  has  been  deposited 
while  awaiting  burial,  without  authority  of  law,  with  intent  to  steal 
the  same,  or  for  the  purpose  of  dissection,  or  for  the  purpose  of  procur- 
ing a  reward  for  the  return  of  the  same,  or  from  malice  or  wantonness, 
is  punishable  by  imprisonment  for  not  more  than  five  years,  or  by  a 
fine  not  exceeding  one  thousand  dollars,  or  both." 

This  statute  describes  every  kind  of  "body  stealing"  known  to 
the  law.  The  addition  inserted  in  the  Penal  Code,  "  or  for  the  purpose 
of  obtaining  a  reward  for  the  same,"  was  the  only  substantial  change 
made  since  the  Re^^sed  Statutes,  in  the  definition  of  this  heinous  crime. 

The  intent  of  the  statute  is  manifest.  It  certainly  was  not  intended 
to  apply  to  exhumations  made  by  legally  constituted  public  authorities 
for  the  purpose  of  ascertaining  whether  crime  has  been  committed  in 
producing  the  death  of  the  person  whose  body  is  exhumed.  When 
the  exhumation  is  made,  not  secretly,  but  publicly,  on  open  applica- 
tion to  the  officer  of  justice  charged  with  the  duty  of  inquiring  into  the 
cause  of  death  of  any  person  whose  body  is  brought  within  his  juris- 
diction, it  is  a  total  misapplication  of  the  statute  against  body  stealing 
to  use  it  for  the  purpose  of  imposing  its  punisliment  on  all  persons  con- 
cerned in  the  exhumation,  in  case  any  proceedings  of  the  officer,  under 
whose  direction  it  was  made,  should  be  found  to  be  irregular. 

The  irregularity  alleged  in  this  case  in  the  conduct  of  the  coroner 
is  that  he  did  not  impanel  a  jury  l^efore  he  ordered  the  post  mortem 
examination  to  be  made  by  the  physicians  whom  he  summoned  for  the 
purpose.  A  sufficient  nimiber  of  persons  to  form  a  jury  was  assembled 
by  direction  of  the  coroner,  but  the  jury  was  not  drawn  and  impaneled. 
I  refer  to  the  opinion  of  Judge  Hardin  as  correctly  stating  the  facts, 
which  we  have  verified  by  an  examination  of  the  testimony. 

The  point  of  law  is  debatable  whether  a  post  mortem  should  take 
place  before  the  coroner  has  impaneled  a  jury.  But  it  is  settled  that 
the  post  mortem  should  not  be  in  the  presence  of  the  jurj*,  and  that 
they  are  to  be  instructed  by  the  testimony  of  the  physicians  who  are 
designated  by  the  coroner  to  make  it.     The  dissection  by  order  of  the 


SECT.  I.]  AXTELL'S  CASE.  425 

coroner   is   expressly    aiitliorized.      (Penal    Code,    §  308 ;    Crisfield   v. 
Ferine,  15  Hun,  202;  affirmed,  81  N.  Y.  622.) 

If,  as  in  England  at  one  time,  the  findings  of  the  coroner's  jury  were 
to  stand  as  an  indictment  by  a  grand  jury,  some  point  might  be  made 
on  behalf  of  the  accused,  as  to  the  validity  of  the  inquest  in  such  a 
case  as  this.  But  to  resort  to  those  questions  for  the  purpose  of  sup- 
porting an  indictment  for  body  stealing,  under  the  circumstances  of 
this  case,  is  quite  unreasonable.  In  the  present  case  the  defendant 
communicated  to  the  coroner,  in  the  form  of  affida\ats  (whether  legally 
authenticated  or  not  is  immaterial)  information  which  should  have  in- 
duced any  magistrate,  not  neglectful  of  his  duty,  to  believe  that  he 
ought  to  investigate  the  matter  presented  to  him.  Those  affidax-its 
made  a  strong  case  to  lead  the  coroner  to  believe  that  a  murder  had 
been  committed,  and  that  an  examination  of  the  body,  which  was  within 
his  jurisdiction,  would  disclose  the  fact.  The  defendant  sought  an 
examination  of  the  body.  She  asked  the  coroner  to  do  his  duty,  and 
to  examine  the  body.  Whatever  motives  may  have  influenced  her, 
no  one  can  suppose  that,  however  unfounded  her  belief  might  have 
been,  there  was  not  sufficient  in  the  papers  she  presented  to  the  coroner, 
to  justify  his  action,  and  there  is  no  pretense  that  the  affida\at  of  Dr. 
Wooster,  which  she  produced,  had  been  in  any  manner  influenced  by 
her.  Her  silence  during  several  years  after  the  death  of  General  Irxnne, 
is  the  main  argument  against  the  bo7}a  fides  of  her  charge,  and  it  is 
said  that  her  desire  was  not  so  much  the  punishment  of  crime,  as  to 
obtain  some  pecuniary  advantage  for  herself  by  making  defamatory 
charges.  However  this  may  be,  if  she  committed  a  wrong,  it  was  not 
the  crime  of  body  stealing,  and  on  this  ground  the  con\action,  and  the 
judgment  of  the  General  Term  affirming  it,  should  be  reversed  and  the 
prisoner  discharged. 

All  concur. 

Judgment  reversed. 


AXTELL'S   CASE. 
All  the  Judges  of  England,  1660. 

[Report ed  J.  Krl.  1.3.1 

Memorandum,  That  upon  the  tryal  of  one  Axtell,  a  soldier,  who 
commanded  the  guards  at  the  king's  tryal,  and  at  his  murder;  he  justi- 
fied that  all  he  did  was  as  a  soldier,  by  the  command  of  his  superiour 
Officer,  whom  he  must  obey  or  die.  It  was  resolved  that  was  no  excuse, 
for  his  Superiour  was  a  Traitor,  and  all  that  joyned  with  him  in  that 
Act  were  Traytors,  and  did  by  that  approve  the  Treason;  and  where 
the  command  is  Traiterous,  there  the  Obedience  to  that  Command  is 
also  Traiterous. 


426  UNITED  STATES  V.    CLARK.  [CHAP.  V. 


UNITED   STATES   v.   CLARK. 
U.  S.  Circuit  Court,  E.  Dist.  Michigan.     1887. 

[Reported  31  Federal  Reporter,  710.] 

Brown,  J.  In  view  of  the  fact  that  this  was  a  homicide  committed 
by  one  soldier,  in  the  performance  of  his  alleged  dut}',  upon  another 
soldier,  within  a  militar}'  reservation  of  the  United  States,  I  had  at  first 
some  doubt  whether  a  civil  conrt  could  take  cognizance  of  the  case  at 
all ;  bat,  as  crimes  of  this  nature  have  repeatedly  been  made  the  subject 
of  inqniry  by  civil  tribunals,  I  have  come  to  the  conclusion  that  I  onght 
not  to  decline  to  hear  this  complaint.  Indeed,  it  is  difficult  to  see  how 
I  could  refuse  to  do  s^  wif.hout  abdicating  that  supremacy  of  the  civil 
power  which  is  a  fundamental  principle  of  the  Anglo-Saxon  polity. 
While  there  is  no  statute  expressly  conferring  such  jurisdiction,  there 
is  a  clear  recognition  of  it  in  the  fifty-nintli  article  of  war,  which  pro- 
vides that  '■'  when  any  officer  or  soldier  is  accused  of  a  capital  crime, 
or  of  an\'  offence  against  the  person  or  property  of  any  citizen  of  any 
of  the  United  States,  which  is  punishable  by  the  laws  of  the  land,  the 
commanding  officer,  and  the  officers  of  the  regiment,  troop,  battery, 
company,  or  detachment  to  which  the  person  so  accused  belongs,  are 
required  (except  in  time  of  war),  upon  application  duly  made  bj'  or  in 
behalf  of  the  party  injured,  to  use  their  utmost  endeavors  to  deliver 
him  over  to  the  civil  magistrate,  and  to  aid  the  officers  of  justice  in 
apprehending  him  and  securing  him,  in  order  to  bring  him  to  trial." 
This  article  makes  no  exception  of  crimes  committed  by  one  soldier 
upon  another,  nor  of  cases  where  there  is  concurrent  jurisdiction  in  the 
militar}- courts.  Tytler,  in  his  work  upon  Military  Law,  saj-s  :  "The 
martial  or  military  law,  as  contained  in  the  mutiny  act  and  articles  of 
war,  does  in  no  respect  supersede  or  interfere  with  the  civil  or  munici- 
pal laws  of  the  realm.  .  .  .  Soldiers  are,  equally  with  all  other  classes  of 
citizens,  bound  to  the  same  strict  observance  of  the  laws  of  the  country, 
and  the  fulfilment  of  all  their  social  duties,  and  are  alike  amenable 
to  the  ordinary  civil  and  criminal  courts  of  the  country  for  all  offences 
against  those  laws,  and  breaches  of  those  duties." 

In  the  case  of  U.  S.  v.  Cornell,  2  Mason,  61,  91,  Mr.  Justice  Story 
took  cognizance  of  a  murder  committed  l^y  one  soldier  upon  another  in 
Fort  Adams,  Newport  harbor.  The  case  was  vigorouslj'  contested, 
and  the  point  was  made  that  the  State  courts  had  jurisdiction  of  the 
offence,  but  there  was  no  claim  that  there  was  not  jurisdiction  in  some 
civil  tril)unal.  A  like  case  was  that  of  a  murder  committed  in  Fort 
Pulaski,  at  the  moutii  of  the  Savannah  River,  and  tried  in  1872  before 
Mr.  .Justice  Woods  and  Judge  Erskine.  U.  S.  v.  Carr,  1  Woods,  480. 
No  question  was  raised  as  to  the  jurisdiction.     The  subject  of  the  civil 


SECT.  I.]  UNITED  STATES  V.    CLA.RK.  427 

responsibility-  of  the  array  was  ver}-  carefully  considered  by  Attorney- 
General  Cnshing,  in  Steiner's  Case,  6  Ops.  Atty.-Gen.  413,  and  the 
conclusion  reached  that  an  act  criminal  both  by  military  and  general 
law  is  subject  to  be  tried  either  by  a  military  or  civil  court,  and  that  a 
conviction  or  acquittal  by  the  civil  authorities  of  the  offence  against 
the  general  law  does  not  discharge  from  responsibility  for  the  military 
offence  involved  in  the  same  facts.  The  converse  of  this  proposition  is 
equally  true. 

The  character  of  the  act  involved  in  this  case  presents  a  more  seri- 
ous question.  The  material  facts  are  undisputed.  There  is  no  doubt 
that  the  deceased  was  killed  by  the  prisoner  under  the  performance 
of  a  supposed  obligation  to  prevent  his  escape  by  any  means  in 
his  power.  There  is  no  evidence  that  tlie  prisoner  fired  before  the 
necessity  for  his  doing  so  had  become  apparent.  Stone  was  called 
upon  several  times  to  halt,  with  a  hail  by  the  quartermaster  sergeant 
that  there  was  "  a  load  after  him."  Duff,  his  nearest  pursuer,  was  not 
gaining  upon  him,  and  in  another  half-minute  he  would  have  scaled  the 
two  fences  between  him  and  the  highwa}',  and  would  probabl}  have 
been  lost  in  the  houses  that  lie  on  the  other  side  of  the  street.  A  court 
of  inquiry,  called  for  the  purpose  of  fully  investigating  the  circum- 
stances, was  of  the  opinion  that  if  Clark  had  not  performed  his  duty 
as  efficiently  as  he  did,  bj-  firing  on  deceased,  he  certainly  would  have 
effected  his  escape  ;  and  found  that  no  further  action  was  necessary  in 
the  case.  The  prisoner  and  the  deceased  had  always  been  good  friends, 
and  it  is  at  least  doubtful  whether  Clark  recognized  him  at  the  time  of 
firing  the  fatal  shot.  The  prisoner  has  heretofore  borne  a  most  excellent 
reputation,  was  never  court-martialled  nor  punished,  and  was  pronounced 
by  all  the  witnesses  who  testified  upon  the  subject  to  be  an  exceptionallj' 
good  soldier.  There  is  not  the  slightest  reason  to  suppose  that  he  was 
not  acting  in  obedience  to  what  he  believed  to  be  his  duty  in  the 
premises.  There  was  some  conflicting  testimony  as  to  whether  he  was 
standing  or  kneeling  at  the  time  he  fired,  but  I  am  not  able  to  see  its 
materialit}'.  If  he  was  authorized  to  shoot  at  all,  he  was  at  liberty  to 
take  such  position  as  would  insure  the  most  accurate  aim,  whether  his 
object  was  to  hit  the  deceased  in  the  leg  or  in  the  bod}'.  Clark  says 
that  he  aimed  low,  for  the  purpose  of  merel\'  disabling  him,  but,  owing 
to  a  sudden  descent  in  the  ground,  the  shot  took  effect  in  the  back 
instead  of  the  leg.  For  the  purpose  of  this  examination,  however,  I  am 
bound  to  presume  that  he  intended  to  kill,  as  a  man  is  always  presumed 
to  intend  the  natural  and  probable  consequences  of  his  acts.  The  case, 
then,  reduces  itself  to  the  naked  legal  proposition  whether  the  prisoner 
is  excused  in  law  in  killing  the  deceased. 

The  general  rule  is  well  settled,  by  elementary  writers  upon  criminal 
law,  that  an  officer  having  custody  of  a  person  charged  with  felony  may 
take  his  life,  if  it  becomes  absolutely  necessary  to  do  so  to  prevent  his 
escape  ;  but  he  may  not  do  this  if  he  be  charged  simply  with  a  misde- 
meanor ;  the  theorv  of  the  law  being  that  it  is  better  that  a  misdemeau- 


428  UNITED    STATES    V.    CLARK.  [CHAP.  V. 

ant  escape  than  that  human  life  be  taken.  I  doubt,  however,  whether 
this  law  would  be  strictly  applicable  at  the  present  da}'.  Suppose,  for 
example,  a  person  were  arrested  for  petit  larcen}-,  which  is  a  felony  at 
the  common  law,  might  an  ofheer  under  any  circumstances  be  justified 
in  killing  him?  I  think  not.  The  punishment  is  altogether  too  dispro- 
|)ortioned  to  the  magniUide  of  the  otfence.  Perhaps,  under  the  statute 
of  this  state.  2  How.  St.  §  9430,  wherein  a  felony  is  "construed  to  mean 
an  offence  for  which  the  offender,  on  conviction,  shall  be  liable  by  law 
to  he  punished  by  death,  or  by  imprisonment  in  the  state  prison,"  the 
principle  might  still  be  applied.  If  this  statute  were  applicable  to  this 
case,  it  would  operate  as  a  justification,  since  Stone  had  been  convicted 
and  sentenced  to  hard  labor  in  a  military  prison.  Under  the  recent 
case  of  ^c  parte  Wilson,  114  U.  S.  417,  5  Sup.  Ct.  Rep.  935,  it  was 
adjudged  by  the  Supreme  Court,  upon  full  consideration,  that  a  crime 
punishable  by  imi)risonment  for  a  term  of  years  at  hard  labor  was  aq 
'•  infamous  crime,"  within  the  meaning  of  the  Constitution. 

Manifestly,  however,  the  case  must  be  determined  by  different  con- 
siderations. Stone  had  been  court-martialled  foi  a  military  otfence,  in 
which  there  is  no  distinction  between  felonies  and  misdemeanors.  His 
crime  was  one  wholly  unknown  to  the  common  law,  and  the  technical 
definitions  of  that  law  are  manifestly  inappropriate  to  cases  which  are 
not  contemplated  in  the  discussion  of  common-law  writers  upon  the  sub- 
ject. We  are  bound  to  take  a  broader  view,  and  to  measure  the  rights 
and  liabilities  of  the  prisoner  by  the  exigencies  of  the  military  service, 
and  the  circumstances  of  the  particular  case.  It  would  be  extremely 
unwise  for  the  civil  courts  to  la}-  down  general  principles  of  law  which 
would  tend  to  impair  the  efficiency  of  the  military  arm,  or  which  would 
seem  to  justify'  or  condone  conduct  prejudicial  to  good  order  and  mili- 
tar}'  discipline.  An  arm}'  is  a  necessity  —  perhaps  I  ought  to  say  an 
unfortunate  necessit}'  —  under  every  system  of  government,  and  no 
civilized  state  in  modern  times  has  been  able  to  dispense  with  one. 
To  insure  efficiency,  an  army  must  be,  to  a  certain  extent,  a  despotism. 
Each  officer,  from  the  general  to  the  corporal,  is  invested  with  an  arbi- 
trary power  over  those  beneath  him,  and  the  soldier  who  enlists  in  the 
army  waives,  in  some  particulars,  his  rights  as  a  civilian,  surrenders 
his  personal  liberty  during  the  term  of  his  enlistment,  and  consents  to 
come  and  go  at  the  will  of  his  superior  officers.  He  agrees  to  become 
amenable  to  the  railitar}'  courts,  to  be  disciplined  for  offences  unknown 
to  the  civil  law,  to  relinquish  his  right  of  trial  by  jur}',  and  to  receive 
punishments  which,  to  the  civilian,  seem  out  of  all  proportion  to  the 
magnitude  of  the  offence. 

The  articles  of  war,  which  he  takes  an  oath,  upon  his  enlistment,  to 
observe,  are  in  fact  a  military  code  of  Draconic  severit}',  and  authorize 
harsh  punishments  for  offences  which  seem  to  be  of  a  trivial  nature. 
Thus,  by  the  articles  of  war,  all  the  following  crimes  are  punishable  by 
death,  or  such  other  punishment  as  a  court-martial  may  direct:  strik- 
ing a  superior  officer;  drawing  or  lifting  up  a  weapon,  or  offering  any 


SECT.  I.]  UNITED    STATES    V.    CLARK.  429 

violence  against  him  ;  or  disobevino;  any  lawful  command.  Article  21. 
Exciting  or  joining  in  any  mntin}-  or  sedition.  Article  22.  Failing 
to  use  his  utmost  endeavors  to  suppress  such  mutiny  or  sedition,  or 
failing  to  give  information  thereof  to  his  commanding  oftlcer.  Article  23. 
A  sentinel  sleeping  upon  his  post  or  leaving  it  before  he  is  relieved. 
Article  39.  Occasioning  false  alarms  in  camp  or  quarters.  Article  41. 
Misbehaving  himself  before  the  enemy,  i-unning  away,  or  shamefully 
abandoning  any  post  which  he  is  commanded  to  defend  ;  speaking 
words  inducing  others  to  do  the  like  ;  casting  away  his  arms  or  annnu- 
uition,  or  quitting  his  post  or  colors  to  plunder  or  pillage.  Article  42. 
Compelling  the  commander  of  any  post  to  surrender  it  to  the  enemy, 
or  to  abandon  it.  Article  43.  Making  known  the  watchword  to  an}' 
person  not  entitled  to  receive  it.  or  giving  the  watchword  different  from 
that  which  he  has  received.  Article  44.  Relieving  the  enemy  with 
money,  victuals,  or  ammunition,  or  harboring  or  protecting  an  enemy. 
Article  45.  Holding  correspondence  or  giving  intelligence  to  an  enem}-. 
Article  46.  Deserting  in  time  of  war.  Article  47.  Advising  or  per- 
suading another  to  desert  in  time  of  war.  Article  51.  Doing  violence  to 
any  person  bringing  provisions  or  other  necessaries  to  camp  or  quarters 
of  troops  in  foreign  parts.  Article  56.  Forcing  a  safeguard  in  a  foreign 
territory  or  during  a  rebellion.  Article  57.  ISume  of  these  articles  are 
applicable  onh'  to  a  state  of  war,  but  some  of  them  treat  of  offences 
which  may  equally  well  be  committed  in  lime  of  i)eace.  Besides  these, 
there  are  a  number  of  minor  ofiences  punishable  as  a  court-martial  may 
direct,  and  a  general  and  very  sweeping  article  (No.  G2)  providing  that 
all  crimes  not  cajntal,  and  all  disorders  and  neglects  to  the  prejudice  of 
good  order  and  military  discipline,  shall  be  justiciable  by  a  court-martial, 
and  punishable  at  the  discretion  of  the  court. 

Now,  while  the  punishment  in  Stone's  case  seems  to  the  civilian 
quite  disproportionate  to  the  character  of  his  offence,  as  charged  in 
the  specifications,  which  was  no  more  nor  less  than  the  utterance  of  a 
malicious  falsehood,  when  gauged  by  the  penalties  attached  by  Congress 
to  the  several  offences  contained  in  the  articles  of  war,  it  does  not  seem 
so  excessive  ;  at  an}'  rate,  it  was  the  lawful  judgment  of  a  court  having 
jurisdiction  of  his  case,  and  it  was  his  cUitv  to  abide  by  it,  or  pursue 
his  remed}-  in  the  method  provided  l)y  law.  In  seeking  to  escai)e,  the 
deceased  was  undoubtedly  guilty  of  other  conduct  prejudicial  to  good 
order  and  military  discipline,  and  was  liable  to  such  further  punishment 
as  a  court-martial  might  inflict.  In  suffering  him  to  escape,  the  prisoner 
became  amenable  to  article  69,  and,  failing  to  use  his  utmost  endeavor 
to  prevent  it,  was  himself  subject  to  such  punishment  as  a  court-martial 
might  direct.     Did  he  exceed  his  authoritv  in  using  his  musket  ? 

I  have  made  the  above  citations  from  the  military  code  to  show  that 
the  common-law  distinction  between  felonies  and  misdemeanors  is  of  no 
possible  service  in  gauging  the  duty  of  a  milifary  guard  with  respect  to 
a  soldier  in  the  act  of  escaping.  His  position  is  moi'e  nearly  analogous 
to  that  of  an  armed  sentinel  stationed  u[)on  the  walls  of  a  [jenitentiarj' 


430  UNITED    STATES    V.    CLARK.  [CHAP.  V. 

to  prevent  the  escape  of  convicts.  The  penitentiary  —  and  for  this 
purpose  we  may  use  the  house  of  correction  in  Detroit  as  an  example — - 
may  contain  convicted  murderers,  felons  of  every  grade,  as  well  as  others 
charged  with  vagrancy  or  simple  breaches  of  the  peace,  and  criminals 
of  all  descriptions  between  the  two.  If  the  guard  sees  one  of  those 
prisoners  scaling  the  wall,  and  there  be  no  other  means  of  arresting 
him,  may  he  not  fire  upon  him  without  stopping  to  inquire  whether  he  is 
a  felon  or  a  misdemeanant?  If  he  prove  to  be  a  felon,  he  will  be  fully 
justified  ;  if  he  prove  to  be  a  misdemeanant,  is  he  therefore  guilty  of 
niurdcr?  There  are  undoubtedly  cases  where  a  person  who  has  no  mal- 
ice in  fact  may  be  charged  with  malice  in  law,  and  held  guilty  of  murder 
through  a  misapprehension  of  the  law.  Thus,  if  a  sheriff  charged  with 
the  execution  of  a  malefactor  by  hanging  should  carry  out  the  sentence 
by  shooting  or  beheading  ;  or,  commanded  to  hang  upon  a  certain  day, 
should  hang  upon  another  day  ;  or  if  an  unauthorized  person  should 
execute  the  sentence,  —  it  would  probably  be  murder  at  common  law. 
But  these  cases  are  an  exception  to  the  general  rule,  that  actual  malice 
must  exist  to  justify  a  conviction  for  murder.  While  human  life  is 
sacred,  and  the  man  who  takes  it  is  held  strictly  accountable  for  his 
act,  a  reputable  citizen,  who  certainly  does  not  lose  his  character  as 
such  by  enlisting  in  the  army,  ought  not  to  be  branded  as  a  murderer 
upon  a  mere  technicality,  unless  such  technicality  be  so  clear  as  to 
admit  of  no  reasonable  doubt.  Thus,  if  a  sentinel  stationed  at  the  gate 
of  a  fort  should  wantonly"  shoot  down  a  civilian  endeavoring  to  enter  in 
the  da3time,  or  an  officer  should  recklessly  slay  a  soldier  for  some  mis- 
conduct or  breach  of  discipline,  no  supposed  obligation  upon  his  part 
to  do  this  would  excuse  so  gross  an  outrage. 

In  this  connection  it  is  urged  by  the  defence  that  the  finding  of  the 
court  of  inquiry  acquitting  the  prisoner  of  all  blame  is  a  complete  bar 
to  this  prosecution.  I  do  not  so  regard  it.  If  the  civil  courts  have 
jurisdiction  of  murder,  notwithstanding  the  concurrent  jurisdiction  by 
court-martial  of  military  otfences,  it  follows  logically  that  the  proceed- 
ings in  one  cannot  be  pleaded  as  a  bar  to  proceedings  in  the  other ; 
and  if  the  finding  of  such  court  should  conflict  with  the  well-recognized 
principles  of  the  civil  law,  I  should  be  compelled  to  disregard  it.  State 
V.  Rankin,  4  Cold.  145.  At  the  same  time  I  think  that  weight  should 
be  given,  and  in  a  case  of  this  kind  great  weight,  to  the  finding,  as  an 
expression  of  the  opinion  of  the  militar}'  court  of  the  magnitude  of 
Stone's  offence,  and  of  the  necessity  of  using  a  musket  to  prevent  his 
escape.  I  am  the  more  impressed  witli  this  view  from  the  difficulty  of 
applying  common  law  principles  to  a  case  of  this  description.  There  is 
a  singular  nnd  almost  total  absence  of  authority  upon  the  subject  of 
the  power  of  a  military  guard  in  time  of  peace.  But  considering  the 
nature  of  military  government,  and  the  necessity  of  maintaining  good 
order  and  discipline  in  a  camp,  I  should  be  loth  to  say  that  life  might 
not  be  taken  in  suppressing  conduct  prejudicial  to  such  discipline. 

In  charging  the  jury  in  U.  S.  v.  Carr,  1  Woods,  484,  Mr.   Justice 


SECT.  I.]  UNITED  STATES  V.    CLAKK.  431 

Woods  instructed  them  to  ''inquire  whether,  at  the  moment  he  fired  his 
piece  at  the  deceased,  with  his  surroundings  at  that  time,  he  had  rea- 
sonable ground  to  believe,  and  did  believe,  that  the  killing  or  serious 
wounding  of  the  deceased  was  nec.essary  to  the  suppression  of  a  mutiny 
then  and  there  existing,  or  of  a  disorder  which  threatened  speedily  to 
ripen  into  a  mutiny.  If  he  had  reasonable  ground  so  to  believe,  and 
did  so  believe,  then  the  killing  was  not  unlawful.  .  ,  .  But  it  must 
be  understood  that  the  law  will  not  require  an  officer  charged  with  the 
order  and  discipline  of  a  camp  or  fort  to  weigh  with  scrupulous  nicety 
the  amount  of  force  necessary  to  suppress  disorder.  The  exercise  of  a 
reasonable  discretion  is  all  that  is  required." 

So,  in  the  case  of  McCall  v.  McDowell,  1  Abb.  (U.  S.)  212,  218,  it  is 
said  that  "  except  in  a  plain  case  of  excess  of  authority,  where  at  first 
blush  it  is  apparent  and  palpable  to  the  commonest  understanding  that 
the  order  is  illegal,  I  cannot  but  think  that  the  law  should  excuse  the 
military  subordinate  when  acting  in  obedience  to  the  order  of  his  com- 
mander. Otherwise  he  is  placed. in  the  dangerous  dilemma  of  being 
liable  in  damages  to  third  persons  for  obedience  to  an  order,  or  to  the 
loss  of  his  commission  and  disgrace  for  disobedience  thereto.  .  .  .  The 
first  duty  of  a  soldier  is  obedience,  and  without  this  there  can  be  neither 
discipline  nor  efficiency  in  the  army.  If  every  subordinate  officer  and 
soldier  were  at  libert}'  to  question  the  legalit\-  of  the  orders  of  the  com- 
mander, and  obey  them  or  not  as  he  may  consider  them  valid  or  invalid, 
the  camp  would  be  turned  into  a  debating  school,  where  the  precious 
moment  for  action  would  be  wasted  in  wordy  conflicts  between  the 
advocates  of  conflicting  opinions."  It  is  true  this  was  a  civil  case  for 
false  imprisonment,  and  these  observations  were  made  with  reference  to 
a  question  of  malice,  which  was  material  as  bearing  upon  the  plaintiffs 
right  to  punitory  damages,  as  it  is  also  a  necessary  ingredient  in  the 
definition  of  murder. 

The  question  of  the  civil  responsibilit}'  of  a  naval  officer  (and  his 
criminal  responsibility  seems  to  be  the  same)  was  considered  b^'  the 
Supreme  Court  in  Wilkes  v.  Dinsman,  7  How.  89,  which  was  an  action 
of  trespass  against  Commodore  Wilkes  for  causing  the  plaintifl!"  to  be 
whipped  and  imprisoned  for  disobedience  of  orders,  near  the  Sandwich 
Islands.  In  discussing  the  responsibility  of  the  commanding  officer  of 
a  vessel  of  war,  Mr.  Justice  Woodbury  observed  :  "■•  In  respect  to  those 
compulsory  duties,  whether  in  re-enlisting  or  detaining  on  board,  or  in 
punishing  or  imprisoning  on  shore,  while  arduously  endeavoring  to  per- 
form them  in  such  a  manner  as  might  advance  the  science  and  com- 
merce and  glory  of  his  country,  rather  than  his  own  personal  designs, 
a  public  officer,  invested  with  certain  discretionar}'  powers,  never  has 
been,  and  never  should  be,  made  answerable  for  any  injury,  when 
acting  within  the  scope  of  liis  authorit}',  and  not  influenced  hy  malice, 
corruption,  or  cruelty.  .  .  .  The  officer,  being  intrusted  with  a  dis- 
cretion for  public  purposes,  is  not  to  be  punished  for  the  exercise  of  it, 
unless  it  is  first  proved  against  him,  either  that  he  exercised  the  power 


432 


UNITED    STATES    V.    CLARK. 


[chap.  V. 


V 


condtled  to  bim  in  cases  without  his  jurisdiction,  or  in  a  manner  not 
confided  to  him,  as,  with  malice,  cruelty,  or  wilful  oppression,  or,  in 
the  words  of  Lord  Mansfield,  that  he  exercised  it  as  if  '  the  heart  is 
wrong.'  In  short,  it  is  not  ei^ough  to  show  that  ho  committed  an  error 
in  judgment,  but  it  must  have  been  a  malicious  and  wilful  error." 

The  same  principle  was  applied  in  the  criminal  case  of  Riggs  r.  State, 
3  Cold.  85.  Riggs  was  a  private  soldier  who  had  been  convicted  of 
Muirder  in  killing  a  man  while  acting  under  the  orders  of  his  superior 
officer.  The  court  held  that  an  order  illegal  in  itself,  and  not  justifiable 
by  the  rules  and  usages  of  war,  so  that  a  man  of  ordinary  sense  and  un- 
derstanding would  know,  when  he  heard  it  read  or  given,  that  the  ordei' 
was  illegal,  would  afford  the  private  no  protection  for  a  crime  under 
such  order  ;  but  that  an  order  given  by  an  officer  to  his  private  which 
does  not  expressly  and  clearly  show  on  its  face,  or  the  body  thereof, 
its  own  illegality,  the  soldier  would  be  bound  to  obey,  and  such  order 
would  be  a  protection  to  him. 

I  have  no  doubt  the  same  principle  would  apply  to  the  acts  of  a 
subordinate  officer,  performed  in  compliance  with  his  supposed  duty  as 
a  soldier;  and  unless  the  act  were  mauifestl}'  beyond  the  scope  of  his 
authority,  or,  in  the  words  used  in  the  above  case,  were  such  that  a  man 
of  ordinary  sense  and  understanding  would  know  that  it  was  illegal,  that 
it  would  be  a  protection  to  him,  if  he  acted  in  good  faith  and  without 
mahce.  As  there  is  no  reason  in  this  case  to  suppose  that  Clark  was 
not  doing  what  he  conceived  to  be  his  duty,  and  the  act  was  not  so 
clearly  illegal  that  a  reasonable  man  might  not  suppose  it  to  be  legal, — 
indeed,  I  incline  to  the  opinion  that  it  was  legal,  —  and  as  there  was  an 
entire  absence  of  malice,  I  think  he  ought  to  be  discharged. 

But,  even  if  this  case  were  decided  upon  common-law  principles,  the 
result  would  not  be  difl^erent.  By  the  statutes  of  the  State  in  which  the 
homicide  was  committed,  a  felony  is  defined  to  be  any  crime  punishable 
by  imprisonment  \n  the  State's  prison.  Stone  had  been  convicted  of  a 
military  offence,  and  sentenced  to  hard  labor  in  the  military  prison  for 
two  years,  and,  so  far  as  the  analogies  of  the  common  law  are  applicable 
at  all,  he  must  be  considered,  in  a  case  of  this  kind,  as  having  been 
convicted  of  a  felony. 

It  may  be  said  that  it  is  a  question  for  a  jurv,  in  each  case,  whether 
the  prisoner  was  justified  by  the  circumstances  in  making  use  of  his 
musket,  and  if  this  were  a  jury  trial  I  should  submit  that  question  to 
them  ;  but  as  I  am  bound  to  find  as  a  matter  of  fact  that  there  is  reasona- 
ble cause  to  believe  the  defendant  guilty,  not  merely  of  a  homicide,  but 
ot  a  felonious  homicide,  and  as  I  would,  acting  in  another  capacity,  set 
aside  a  conviction,  if  a  verdict  of  guilty  were  rendered,  I  shall  assume 
the  responsibility  of  directing  his  discharge.* 

'  See  also  Com.  v.  Shortall,  206  Pa.  165.  —  Ed. 


SECT.  II.]  HANDCOCK   V.    BAKER.  433- 


SECTION   II. 

« 

Authorltij  to  Act. 

HANDCOCK  V.   BAKER. 

Common  Pleas,  1800. 

[Reported  2  B    &  P.  260.] 

Trespass  for  breaking  the  plaintiff's  dwelling  house  and  assaulting 
him  therein,  and  dragging  him  out  of  bed,  and  forcing  him  without 
clothes  out  of  his  house  along  the  public  street,  and  beating  and  im- 
prisoning him  without  cause. 

Two  of  the  defendants  suffered  judgment  hy  default,  and  the  other 
two  pleaded,  1st,  not  guilty:  2dly,  that  the  plaintiff'  in  the  said  dwelling 
house  broke  the  peace  and  assaulted  his  wife,  and  purposed  to  have 
feloniously  killed  and  slain  her,  and  was  on  the  point  of  so  doing; 
and  that  her  life  being  in  great  danger  she  cried  murder  and  called  for 
assistance;  whereupon  the  defendants,  for  the  preservation  of  the  peace, 
and  to  prevent  the  plaintiff'  from  so  killing  and  slaying  his  wife,  and 
committing  the  said  felony,  endeavored  to  enter  by  the"'  door,  and 
knocked  thereat;  and  because  the  same  was  fastened,  and  there  was 
reasonable  cause  to  presume  that  the  wife's  life  could  not  have  been 
otherwise  preserved  than  by  immediately  breaking  open  the  door  and 
entering  the  said  dwelling  house,  and  they  could  not  otherwise  obtain 
possession,  they  did  for  that  purpose  break  and  enter  the  said  dwelling 
house,  and  somewhat  break,  etc.,  doing  as  little  damage  as  possible, 
and  gently  laid  hands  on  the  plaintiff,  and  prevented  him  from  further 
assaulting  and  feloniously  killing  and  slaving  his  said  wife;  and  for  the 
same  purpose  and  also  for  that  of  taking  and  delivering  the  plaintiff 
to  a  constable,  to  be  by  him  taken  before  a  justice,  and  dealt  with 
according  to  law,  kept  and  detained  him  a  short  and  reasonable  time 
in  that  behalf,  and  because  he  had  not  then  proper  and  reasonable 
clothes  on  him,  took  their  hands  off  from  him,  and  permitted  him  to 
enter  a  bed-chamber,  and  to  remain  there  a  reasonable  time,  that  he 
might  put  on  such  clothes,  which  he  might  have  done;  and  because  he 
did  not  nor  would  so  do,  but  wholly  refused  and  went  into  bed  there, 
and  remained  there  at  the  end  of  such  reasonable  time,  and  would  not 


434  HANDCOCK   V.    BAKER.  [CHAP.  V. 

quit  the  same,  although  thereto  requested,  the  defendants  for  the 
same  purposes  as  they  so  kept  and  detained  the  plaintiff  as  above- 
mentioned,  there  being  then  no  reasonable  ground  for  presuming  that 
he  had  changed  his  purpose  of  further  assaulting  and  feloniously  slajyang 
his  said  wife,  entered  the  bed-chamber  in  order  for  those  purposes  to 
take  him  therefrom,  whereupon  the  plaintiff  assaulted  and  would  have 
beat  the  said  defendants  if  they  had  not  defended  themselves,  which 
they  did,  and  if  any  damage  happened  to  the  plaintiff  it  was  occasioned 
by  his  own  assault,  and  the  defendants  for  the  purposes  in  that  behalf 
aforesaid,  gently  laid  hands  upon  the  plaintiff  and  took  him  from  the 
bed  and  out  of  the  dwelling  house  along  the  public  streets  for  a  rea- 
sonable time,  and  kept  and  detained  him  for  a  short  and  reasonable 
time  for  those  purposes,  till  they  could  find  a  constable,  and  as  soon 
as  they  could  find  a  constable  delivered  him  to  the  constable  for  the 
purpose  in  that  behalf  aforesaid. 

The  plaintiff  replied  de  injuria  sua  propria,  and  by  way  of  new 
assignment  pleaded,  that  he  sued  out  his  writ  and  declared  as  well 
for  the  trespasses  justified,  as  also  for  that  the  defendants  at  the  times 
when,  etc.,  beat  and  ill-treated  the  plaintiff  with  much  greater  violence 
and  imprisoned  him  for  a  longer  time  than  was  necessary  and  proper 
for  any  of  the  purposes  in  the  plea  mentioned. 

Issue  having  been  joined  on  the  replication  and  new  assignment,  the 
cause  was  tried  before  Grose,  J.,  at  the  last  spring  assizes  for  Norfolk, 
when  the  jury  found  for  the  plaintiff  on  the  general  issue,  and  for  the 
defendants  on  the  special  justification. 

In  Easter  term  last  a  rule  Nisi  was  obtained  calling  on  the  defendants 
to  show  cause  why  the  judgment  for  the  defendants  on  the  special 
justification  should  not  be  arrested,  and  a  verdict  entered  for  the 
plaintiff  on  the  general  issue,  with  Is.  damages. 

Lord  Eldon,  C.  J.  If  the  reasoning  be  good  that  a  wife  ought  to 
apply  for  assistance  to  those  courts  where  the  law  has  pro\'ided  assist- 
ance for  her,  it  will  equally  apply  to  the  first  entry  of  the  house  by  the 
defendants,  as  to  the  subsequent  assault  and  imprisonment  which 
is  stated  to  have  taken  place  in  the  bedroom.  I  think,  however,  that 
1  a  wife  is  only  bound  to  apply  to  those  remedies,  where  it  is  probable 
that  the  injury  to  be  apprehended  will  be  prevented  by  such  applica- 
tion. In  this  case  the  plaintiff  being  about  to  commit  a  felony  by  killing 
and  slaN-ing  his  wife,  the  defendants  interfered  by  breaking  and  enter- 
ing the  house  in  order  to  prevent  the  execution  of  that  intent:  and 
'  "  for  the  same  purposes,"  that  is,  with  a  \new  to  prevent  the  plaintiff 
from  killing  and  slaying  his  wife,  they  afterwards  committed  the  injury 
complained  of  in  the  bedroom,  into  which  they  had  permitted  him  to 
enter  in  order  to  put  on  necessary  clothes.  It  is  stated  that  there 
was  no  rcasonal>le  ground  for  presuming  that  the  plaintiff  had  changed 
his  purpose ;  and  it  is  argued  that  it  ought  to  have  been  averred  that  his 
purpose  actually  continued:  but  if  the  preceding  allegation  be  true. 


SECT.  II.]  HANDCOCK   V.    BAKER.  435 

that  the  defendants  entered  the  bedroom  for  the  same  purposes  for 
which  they  had  previously  entered  the  house,  the  latter  allegation  was 
unnecessary;  since  the  averment  that  it  was  for  the  same  purposes 
sufficiently  brought  the  question  before  the  jury,  Whether  or  not  the 
defendants  went  into  the  bed-chamber  and  detained  the  plaintiff 
for  the  purpose  of  preventing  him  from  killing  and  slaying  his  wife? 
It  is  not  difficult  to  conceive  that  under  some  circumstances  it  might 
be  more  especially  the  defendant's  duty  to  interfere  in  that  manner. 
Suppose  A  endeavor  to  lay  hold  of  B  who  is  in  pursuit  of  C  with  an 
intent  to  kill  him,  and  B  thereupon  ceases  to  pursue  ^with  the  \dew 
of  effecting  his  purpose  with  more  cunning,  the  act  of  ceasing  to  run, 
so  far  from  being  evidence  of  an  intention  to  desist  from  his  purpose, 
might  afford  strong  e^^dence  of  an  intention  to  prosecute  it  with  more 
effect;  in  which  case  the  detention  of  B  would  be  justified.  In  this 
case  the  jury  were  competent  to  consider  whether  under  all  the  cir- 
cumstances of  the  case,  including  the  presence  or  absence  of  the  wife, 
the  plaintiff  got  into  bed  with  a  view  of  more  effectually  executing  his 
intent  to  kill  liis  wife.  In  fact  the  jury  have  found  that  the  defendants 
kept  and  detained  the  plaintiff  after  he  had  gone  into  the  bedroom 
for  the  same  purposes  for  which  they  kept  and  detained  him  before. 
With  respect  to  the  averment  which  has  been  supposed  to  be  necessary, 
it  is  sufficient  to  answer,  that  after  verdict  it  must  be  presumed  that 
everything  is  proved  which  is  necessary  to  support  the  verdict;  and 
the  jury  have  found  that  it  was  necessary  for  the  preservation  of  the 
woman's  life  that  the  defendants  should  do  what  they  did. 

Heath,  J.  I  am  of  the  same  opinion.  It  is  a  matter  of  the  last  con- 
sequence that  it  should  be  known  upon  what  occasions  bystanders 
may  interfere  to  prevent  felony.^     In  the  riots  which  took  place  in 

^  Indeed  there  seems  to  be  very  high  authority  for  the  interference  of  private  indi- 
viduals in  case  of  riot,  though  no  felony  be  committed.  The  question  underwent  a 
very  solemn  discussion  in  1597  (39  Eliz.  at  which  time  the  country  was  in  a  very 
unquiet  state,)  before  all  the  judges  in  a  case  which  is  called  "Case  of  armes," 
Popk:  121,  and  is  as  follows:  "Upon  an  assembly  of  all  the  justices  and  barons  at 
Sergeant's  Inn  this  term,  on  Monday  the  15th  day  of  April,  upon  this  question 
moved  by  Anderson,  C.  J.,  of  the  Common  Bench;  Whether  men  may  arm  them- 
selves to  suppress  riots,  reljellions,  or  to  resist  enemies  and  to  endeavour  themselves 
to  suppress  or  resist  such  disturbers  of  the  peace  or  quiet  of  the  realm?  And  upon 
good  deliberation  it  was  resolved  by  them  all,  that  every  justice  of  peace,  sheriff 
and  other  minister  or  other  subject  of  the  king  where  such  accident  happen  may  do 
it;  and  to  fortify  this  their  resolution,  they  perused  the  statute  of  2  Ed.  3.  3.  which 
enacts,  that  none  be  so  hardy  as  to  come  with  force  or  bring  force  to  any  place  in 
affray  of  the  peace,  nor  to  go  or  ride  armed  night  nor  day,  unless  he  be  a  servant  to 
the  king  in  his  presence,  and  the  ministers  of  the  king  in  the  execution  of  his  pre- 
cepts, or  of  their  office  and  those  who  are  in  their  company  assisting  them,  or  upon 
cry  made  for  weapons  to  keep  the  peace,  and  this  in  such  places  where  accidents 
happen,  upon  the  penalty  in  the  same  statute  contained;  whereby  it  appeareth  that 
upon  cry  made  for  weapons  to  keep  the  peace,  every  man  where  such  accidents  hap- 
pen for  breaking  the  peace,  i^ay  by  the  law  arm  himself  against  such  evil-doers  to 
keep  the  peace.    But  they  take  it  to  be  the  more  discreet  way  for  every  one  in  such 


436  HANDCOCK   V.   BAKER.  [CHAP.  V. 

the  year  1780,  this  matter  was  much  misunderstood,  and  a  general 
persuasion  prevailed  that  no  indifferent  person  could  interpose  without 
the  authority  of  a  magistrate;  in  consequence  of  which  much  mischief 
was  done,  which  might  otherwise  have  been  prevented.  In  this  case 
the  defendants  broke  and  entered  the  plaintiff's  house  in  order  to 
prevent  the  commission  of  murder,  and  that  seems  to  have  been  ad- 
mitted to  be  a  good  justification.  The  only  dispute  therefore  turns 
on  the  propriety  of  their  conduct  towards  the  plaintiff  after  they  had 
suffered  him  to  go  into  the  bedroom.  Now  1  tliink  that  enough  is 
stated  in  the  justification  to  support  the  verdict,  since  the  jury  have 
thought  that  the  conduct  of  the  defendants  was  right.  After  verdict 
we  may  suppose  anything.  We  may  suppose  that  the  plaintiff's 
passion  continued,  and  that  he  again  declared  that  he  would  kill  his 
wife. 

RooKE,  J.  I  am  of  the  same  opinion.  It  is  highly  important  that 
bystanders  should  know  when  they  are  authorized  to  interfere.  In 
this  case  the  life  of  the  wife  was  in  danger  from  the  act  of  the  husband. 
The  defendants  therefore  were  justified  in  breaking  open  the  house, 
and  doing  what  was  necessary  for  the  preservation  of  her  life.  The  jury 
find  that  they  have  done  this. 

Chambre,  J.  There  is  a  great  difference  between  the  right  of  a  pri- 
vate person  in  cases  of  intended  felony  and  of  breach  of  the  peace. 
It  is  lawful  for  a  private  person  to  do  anything  to  prevent  the  perpetra- 
tion of  a  felony.  In  this  case  it  is  stated  that  the  plaintiff  purposed 
feloniously  to  kill  and  slay  his  wife,  to  prevent  which  the  defendants 
interfered  in  the  manner  stated  in  the  plea.  The  justification  has 
been  found  by  the  verdict;  and  the  defendants  therefore  are  entitled 
to  the  judgment  of  the  court. 

Rule  discharged. 

a  case  to  attend  and  be  assistant  to  the  justices,  sheriffs,  or  other  ministers  of  the 
king  in  the  doing  of  it."  This  case  is  spoken  of  with  approbation  by  the  judges  in 
the  great  case  of  Messenger  and  others,  Kel.  76,  and  its  principle  is  atlopted  by 
Hawkins  in  his  pleas  of  the  crown,  lib.  1,  c.  6.5,  s.  11,  where  he  says,  "it  hath  been 
holden  that  private  persons  may  arm  themselves  in  order  to  suppress  a  riot,  from 
whence  it  seems  clearly  to  follow  that  they  may  also  make  use  of  arms  in  the  suppress- 
ing of  it  if  there  be  a  necessity  for  so  doing."  He  adds  indeed,  that  it  seems  hazard- 
ous for  private  persons  to  go  so  far  in  common  cases,  and  that  such  violent  methods 
seem  only  proper  against  such  riots  as  savour  of  rebellion. 


SECT.   II.J  POND    V.    PKOPLE.  4? 


X 


REX  V.    SMITH. 

Old  Bailey.     1804. 

[Reported  1  Rtiss.  Cr.  <|-  3L  458.] 

The  neighborhood  of  Hammersmith  liad  been  alarmed  b}'  what  was 
supposed  to  be  a  ghost ;  the  prisoner  went  out  with  a  loaded  gun  to 
take  the  ghost ;  and,  upon  meeting  with  a  person  dressed  in  white, 
immediately  shot  him. 

M'DoNALD,  C.  B.,  RooKE  and  Lawrence,  JJ.,  were  clear  that  this 
was  murder,  as  tlie  person  who  appeared  as  a  ghost  was  only  gniltv  of  a 
misdemeanor  ;  and  no  one  might  kill  him,  though  he  could  not  otherwise 
be  taken. 


POND   V.    PEOPLE. 
Supreme  Court  of  Michigan,  1860. 

[Reported  8  Mich.  L'SO.] 

The  plaintiff  in  eriT)r  was  tried  on  an  information  for  the  murder  of 
one  Isaac  Blanchard,  and  con\'icted  of  manslaughter.^ 

Campbell,  J.  The  essential  difference  between  excusable  and  justi- 
fiable homicide  rests  not  merely  in  the  fact  that  at  common  law  the 
one  was  felonious,  although  pardoned  of  course,  while  the  other  was 
innocent.  Those  only  were  justifiable  homicides  where  the  slayer  was 
regarded  as  promoting  justice,  and  performing  a  public  duty;  and  the 
question  of  personal  danger  did  not  necessarily  arise,  although  it  does 
generally. 

It  is  held  to  be  the  duty  of  every  one  who  sees  a  felony  attempted 
by  \'iolence,  to  prevent  it  if  possible;  and  in  the  performance  of  this 
duty,  wliich  is  an  active  one,  there  is  a  legal  right  to  use  all  necessary 
means  to  make  the  resistance  effectual.  Where  a  felonious  act  is  not 
of  a  ^^olent  or  forcible  character,  as  in  picking  pockets,  and  crimes 
partaking  of  fraud  rather  than  force,  there  is  no  necessity,  and  therefore 
no  justification,  for  homicide,  unless  possibly  in  some  exceptional 
cases.    The  rule  extends  only  to  cases  of  felony;  and  in  those  it  is  lawful 

'  The  evidence,  except  so  far  as  it  is  stated  in  the  opinion,  and  part  of  the  opinion 
in  which  the  question  of  self-defense  is  discussed,  are  omitted.  —  Ed. 


438  POND   V.    PEOPLE.  [chap.  V. 

to  resist  force  by  force.  If  any  forcible  attempt  is  made,  with  a  felonious 
intent  against  person  or  property,  the  person  resisting  is  not  obliged 
to  retreat,  but  may  pursue  his  adversary,  if  necessary,  till  he  finds 
himself  out  of  danger.  Life  may  not  properly  be  taken  under  this  rule 
where  the  evil  may  be  prevented  by  other  means  within  the  power  of 
the  person  who  interferes  against  the  felon.  Reasonable  apprehension, 
however,  is  sufficient  here,  precisely  as  in  all  other  cases. 

It  has  also  been  laid  down  by  the  authorities,  that  private  persons 
may  forcibly  interfere  to  suppress  a  riot  or  resist  rioters,  although  a 
riot  is  not  necessarily  a  felony  in  itself.  This  is  owing  to  the  nature  of 
the  offense,  which  requires  the  combination  of  three  or  more  persons, 
assembling  together  and  actually  accomplishing  some  object  calculated 
to  terrify  others.  Private  persons  who  cannot  otherwise  suppress 
them,  or  defend  themselves  from  them,  may  justify  homicide  in  killing 
them,  as  it  is  their  right  and  duty  to  aid  in  preserving  the  peace.  And 
perhaps  no  case  can  arise  where  a  felonious  attempt  by  a  single  indi- 
\adual  will  be  as  likely  to  inspire  terror  as  the  turbulent  acts  of  rioters. 
And  a  very  limited  knowledge  of  human  nature  is  sufficient  to  inform 
us,  that  when  men  combine  to  do  an  injury  to  the  person  or  property 
of  others,  of  such  a  nature  as  to  involve  excitement  and  provoke  re- 
sistance, they  are  not  likely  to  stop  at  half  way  measures,  or  to  scan 
closely  the  dividing  line  between  felonies  and  misdemeanors.  But  when 
the  act  they  meditate  is  in  itself  felonious,  and  of  a  violent  character, 
it  is  manifest  that  strong  measures  will  generally  be  required  for  their 
effectual  suppression;  and  a  man  who  defends  himself,  his  family,  or  his 
property,  under  such  circumstances,  is  justified  in  making  as  complete 
a  defense  as  is  necessary. 

When  we  look  at  the  facts  of  this  case,  we  find  very  strong  circum- 
stances to  bring  the  act  of  Pond  within  each  of  the  defenses  we  have 
referred  to.  Without  stopping  to  recapitulate  the  testimony  in  full  or 
in  detail,  we  have  these  leading  features  presented :  Without  any  cause 
or  provocation  given  by  Pond,  we  find  Plant,  Robilliard,  and  Blanchard, 
combining  with  an  expressed  intention  to  do  him  personal  violence. 
On  Thursday  evening  this  gang,  with  from  fifteen  to  twenty  associates, 
hav-ing  been  hunting  for  Pond,  found  him  at  a  neighbor's,  and  ha\'ing 
got  him  out  of  doors,  surrounded  him,  while  Plant  struck  him  with  his 
fist,  and  kicked  him  in  the  breast,  with  insulting  language,  evidently 
designed  to  draw  him  into  a  fight.  He  escaped  from  them,  and  ran 
away  into  the  woods,  and  succeeded  in  avoiding  them  that  night. 
The  same  night  they  tore  down  the  door  of  the  net-house,  where  his 
servants  were  asleep,  in  search  of  him ;  and  not  finding  him  there,  went 
to  the  house,  the  whole  rabble  being  with  them,  and  wanted  Pond,  and 
expressed  themselves  determined  to  have  him;  but  refused  to  tell  his 
wife  what  they  wanted  of  him.  Not  finding  him  there,  they  started  off 
elsewhere  in  search  of  him.  This  was  between  nine  and  ten  o'clock  at 
night.     About  noon  of  Friday,  Plant  and  Blanchard  met  Pond,  when 


SECT.  II.]  POND    V.    PEOPLE.  439 

Plant  threatened  again  to  whip  him ;  and  then  went  up  to  him,  told  him 
not  to  say  anything,  and  that  if  he  did  he  would  give  him  slaps  or  kicks. 
Plant  then  took  a  stone  in  his  hand,  and  threatened  if  Pond  spoke,  to 
throw  it  at  him.  Pond  said  nothing,  but  went  home  quietly,  and  Plant 
went  off  and  was  heard  making  further  threats  soon  after.  Friday 
night  neither  Pond  nor  his  family  went  to  bed,  being  in  fear  of  violence. 
Between  one  and  two  o'clock  that  night.  Plant,  Robilliard,  and  Blan- 
chard  went  to  the  net-house,  and  partially  tore  it  down,  while  Whitney 
and  Cull  were  in  it.  They  then  went  to  the  house  where  Pond,  his  wife, 
and  children  were,  shook  the  door,  and  said  they  wanted  Pond.  Pond 
concealed  himself  under  the  bed,  and  his  wife  demanded  what  they 
wanted  of  him,  saying  he  was  not  there;  when  Plant  shook  the  door 
again,  and  ordered  Mrs.  Pond  to  open  it,  saying  they  wanted  to  search 
the  house.  She  refusing,  they  resorted  to  artifice,  asking  for  various 
articles  of  food,  and  objecting  to  receixang  them  except  through  the 
door.  Plant  then  repeatedly  commanded  her  to  open  the  door,  saying 
if  she  did  not,  she  would  regret  it.  On  opening  the  door  from  six  to 
twelve  inches,  by  sliding  the  cord,  to  hand  them  some  sugar,  which  they 
demanded,  they  did  not  take  the  sugar,  but  Plant  seized  Mrs.  Pond's 
arm,  and  squeezed  it  until  she  fainted.  Not  succeeding  in  getting  into 
the  house,  they  then  left  for  Ward's,  and  Pond  went  to  the  house  of  his 
brother-in-law,  and  borrowed  a  double-barreled  shot  gun  loaded  with 
pigeon  shot,  and  returned  home.  While  at  Ward's  Blanchard  told  the 
latter  that  they  had  torn  down  part  of  Pond's  net-house,  and  had  left 
the  rest  so  that  when  they  went  back  they  would  have  the  rest  of  the  fun. 
Blanchard  also  said,  "I  want  to  see  Gust.  Pond:  he  abused  an  Irish- 
man, and  I  want  to  abuse  him  just  as  bad  as  he  abused  the  Irishman. 
Pond  has  to  be  abused  any  way."  He  also  said  to  Ward,  "This  is 
good  bread,  I  don't  know  but  it  may  be  the  last  piece  of  bread  I'll  eat." 
Plant  also  made  threats.  A  short  time  after  returning,  they  were  heard 
to  say  they  were  going  back  again;  were  going  to  find  him  and  to  whip 
him,  or  have  the  soul  out  of  him.  It  is  to  be  remarked  that  we 
have  their  language  as  rendered  by  an  interpreter,  who  was  evi- 
dently illiterate,  or  at  least  incompetent  to  translate  into  very  good 
English;  and  it  is  impossible  for  us  to  determine  the  exact  force  of 
what  was  said. 

The  party  then  went  back  to  Pond's,  and  asked  admittance  to  search 
for  him.  His  wife  refused  to  let  them  in.  They  immediately  went  to 
the  net-house,  where  Cull  was  asleep.  Plant  seized  Cull,  and  pulled 
him  out  of  bed  on  the  floor,  and  began  choking  him.  Cull  demanded 
who  it  was,  but  received  no  answer.  Blanchard  and  Robilliard  had 
commenced  tearing  down  the  boards.  Pond  went  to  the  door  and 
hallooed,  "Who  is  tearing  down  my  net-house?"  to  which  there  was 
no  answer.  The  voices  of  a  woman  and  child  were  heard  crying,  and 
the  woman's  voice  was  heard  twice  to  cry  out  "  for  God's  sake! "  Cull's 
voice  was  also  heard  from  the  net-house,  not  speaking,  but  hallooing 


/■ 


440  -  POND    V.    TEOPLE.  [CHAP.  7. 

as  if  he  was  in  pain.  Pond  cried  out  loudly,  "leave  or  I'll  shoot." 
The  noise  continuing,  he  gave  the  same  warning  again,  and  in  a  few 
seconds  shot  off  one  barrel  of  the  gun.  Blanchard  was  found  dead  the 
next  morning.  Pond  took  immediate  steps  to  surrender  himself  to 
justice. 

A  question  was  raised  whether  the  net-house  was  a  dwelling  or  a 
part  of  the  dwelling  of  Pond.  We  think  it  was.  It  was  near  the  other 
building,  and  was  used  not  only  for  preserving  the  nets  which  were 
used  in  the  ordinary  occupation  of  Pond,  as  a  fisherman,  but  also  as  a 
peruianent  dormitory  for  his  servants.  It  was  held  in  The  People  v. 
Taylor,  2  Mich.  250,  that  a  fence  was  not  necessary  to  include  build- 
ings within  the  curtilage,  if  within  a  space  no  larger  than  that 
usually  occupied  for  the  purposes  of  the  dwelling  and  customary 
outbuildings.  It  is  a  very  common  thing  in  the  newer  parts  of 
the  country,  where,  from  the  nature  of  the  materials  used,  a  large 
building  is  not  readily  made,  to  have  two  or  more  small  buildings, 
with  one  or  two  rooms  in  each,  instead  of  a  large  building  divided 
into  apartments. 

We  cannot,  upon  a  consideration  of  the  facts  manifest  from  the  bill 
of  exceptions,  regard  the  charges  asked  by  the  defense  as  alxstract  or 
inapplicable  to  the  case.  It  was  for  the  jury  to  consider  the  whole 
chain  of  proof;  but  if  they  believed  the  evidence  as  spread  out  upon  the 
case,  we  feel  constrained  to  say  that  there  are  very  few  of  the  precedents 
which  have  shown  stronger  grounds  of  justification  than  those  which 
are  found  here.  Instead  of  reckless  ferocity,  the  facts  display  a  very 
commendable  moderation. 

Apart  from  its  character  as  a  dwelling,  which  was  denied  by  the 
court  below,  the  attack  upon  the  net-house  for  the  purpose  of  destroy- 
ing it  was  a  violent  and  forcible  felony.  And  the  fact  that  it  is  a 
statutory  and  not  common  law  felony,  does  not,  in  our  view,  change  its 
character.  Rape  and  many  other  of  the  most  atrocious  felonious 
assaults,  are  statutory  felonies  only,  and  yet  no  one  ever  doubted  the 
right  to  resist  them  unto  death.  And  a  breaking  into  a  house  with  the 
design  of  stealing  the  most  trifling  article,  being  common  law  burglary, 
was  likewise  allowed  to  be  resisted  in  like  manner,  if  necessary.  W^e 
think  there  is  no  reason  for  making  any  distinctions  between  common 
law  and  statute  felonies  in  this  respect,  if  they  are  forcible  and  violent. 
So  far  as  the  manifest  danger  to  Pond  himself,  and  to  Cull,  is  concerned, 
the  justification  would  fall  within  the  common  law. 


SECT.  II.j  KEGINA    V.    MURPHY.  441 

REGINA    V.  IVIURPHY. 
Meath  Assizes.     1839. 

[Eeportfid  I  Crairford  <j-  iJir,  20.] 

The  prisoner  was  indicted  under  the  statute  7  Will.  IV.  &  I  Viet, 
c.  85,  for  tliat  a  certain  gun  tlien  and  there  loaded  with  gunpowder  and 
divers  leaden  shot,  which  said  gun  he  the  said  P.  M.,  in  both  his  hands, 
then  and  there  had  and  held,  at  and  against  one  Christopher  Hand,  then 
and  there  feloniously,  unlawfully,  and  maliciously  did  shoot,  with  intent 
in  so  doing  thereby  then  and  tiiere  the  said  C.  H.  to  disfigure,  to  disable, 
and  to  do  some  grievous  bodily  harm. 

It  appeared  that  on  the  daj-  in  question  the  prisoner.  Mho  was  a 
game-keeper  and  woodranger  of  Lord  Dunsany,  and  armed  with  a 
fowling-piece,  detected  the  prosecutor  in  the  act  of  carrying  away  from 
his  employer's  lands  a  bundle  of  sticks,  consisting  of  branches  severed 
from  the  growing  timber  by  a  recent  storm  ;  tliat  the  prosecutor  being 
apparently  about  to  pass  over  a  ditch  and  hedge  upon  the  same  lands, 
the  prisoner  cried  out  to  him,  "Have  you  no  other  way  of  going  but 
breaking  the  hedge  ?  "  that  the  prosecutor  made  no  reply,  but  instantU' 
dropped  the  wood  and  leaped  the  ditch  ;  that  the  prisoner  thereupon 
said,  "  If  you  don't  stop  I  '11  fire  ;  "  that  the  prosecutor  still  going  on, 
the  prisoner  dischai'ged  his  piece  and  wounded  the  prosecutor  in  the 
head,  back,  and  arras.  When  the  prosecutor  felt  himself  wounded  he 
said  to  the  prisoner,  who  had  come  up  with  him,  "'1  did  not  think  you 
would  have  done  it;"  to  which  the  latter  replied,  "I  would  do  that  and 
worse  to  you." 

W.  Gorman,  for  the  prisoner,  submitted  that,  under  the  circum- 
stances, he  (the  prisoner)  was  entitled  to  an  acquittal ;  that  he,  being 
the  woodranger  of  the  owner  of  the  soil,  had  an  equal  right  to  defend 
the  property  thereon ;  and  that,  having  detected  the  prisoner  in  the  act 
of  committing  a  felon}',  l)y  carrying  off  the  dissevered  timber,  he  had 
made  use  of  the  onl}'  means  in  his  power  for  the  purpose  of  arresting 
the  felon. 

Tickell,  Q.  C,  for  the  Crown.    The  prosecutor  was  a  mere  trespasser. 

DoHEKTY,  C.  J.  He  was  something  more  than  a  trespasser  ;  there  is 
no  doubt  that  the  prosecutor,  in  carrying  away  the  branches,  previously 
dissevered  from  the  trees,  was  committing  a  felony,  and  the  prisoner 
was  clearh-  entitled  to  arrest  him  ;  but  in  discharging  his  gun  at  the 
prosecutor,  and  perilling  his  life,  the  prisoner  has  very  much  exceeded 
his  lawful  powers,  and  I  cannot  allow  it  to  go  abroad  that  it  is  lawful 
to  fire  upon  a  person  committing  trespass  and  larcen}',  for  that  would 
be  punishing,  perhaps  with  death,  offences  for  which  the  law  has  pro- 
vided milder  penalties.  It  appears,  moreover,  that  the  expressions 
addressed  by  the  prisoner  to  the  prosecutor  had  reference  rather  to  the 
acts  of  trespass  than  the  felony.  Verdict,  Guiltij. 


442  BURNS  V.   ERBEN.  [CHAP.  V. 


BURNS  V.  ERBEN. 
Court  of  AppIeals,  New  York,  1869. 

[Reported  40  A'.  Y.  463.] 

Woodruff,  J.  By  section  8  of  the  act  to  establish  a  MetropoHtan 
PoUce  District,  passed  April  15th,  1857  (chap.  569  of  Laws  of  1857), 
the  members  of  the  police  force  of  that  district  are  given  "in  every 
part  of  the  State  of  New  York,  all  the  common  law  and  statutory  powers 
of  constables,  except  for  the  service  of  ci\al  process."  And  in  the 
amendatory  act  passed  April  10,  1860  (chap.  259  of  Laws  of  1860),  it  is 
declared  in  the  28th  section,  that  the  members  of  the  police  force  of 
that  district  "  shall  possess  in  every  part  of  the  State  all  the  common 
law  and  statutory  powers  of  constables,  except  for  the  ser\dce  of  civil 
process." 

In  pursuance  of  information  given  by  the  defendant,  Erben,  the 
defendant,  Frost,  accompanied  by  Erben,  arrested  the  plaintiff  without 
warrant,  took  her  to  the  police  station,  where  she  was  detained  a  few 
minutes,  and  after  some  conversation  with  the  officer  in  charge,  she 
was  permitted  to  return  to  her  residence.  For  this  she  has  brought  the 
present  action  for  false  imprisonment. 

A  felony  had  been  committed  that  evening,  at  the  house  of  Mr. 
Henry  Erben,  the  defendant's  father.  On  that  point  there  is  no  dispute 
or  conflict.  The  plaintiff  had  Ansited  the  house  that  evening,  and, 
according  to  the  information  upon  which  the  defendant  acted,  was  the 
only  person  not  a  member  of  the  family,  who  had  been  in  the  basement. 
Silver  had  been  stolen  from  the  basement.  It  was  there  when  the 
plaintiff  entered  and  until  after  8  o'clock;  and  it  was  missed  very  shortly 
after  she  left  the  house.  Of  these  facts  the  proof  was  distinct  and  with- 
out contradiction. 

Upon  a  report  of  these  facts.  Frost,  accompanied  by  the  defendant, 
Erben,  made  the  arrest  as  above  stated. 

The  inquiry  is,  therefore,  whether  under  the  statutes  above  cited 
and  the  common  law  rule  in  respect  of  arrests  made  or  aided  by  pri- 
vate persons,  the  plaintiff  was  entitled  to  recover.  There  were  no  facts 
in  dispute  requiring  the  submission  of  any  question  to  the  jury,  unless 
it  be  held  that  there  was  no  justification. 

I  have  no  doubt  upon  the  subject.  The  writers  upon  criminal  law 
and  the  reported  cases,  so  far  as  I  have  examined  them,  hold  uniform 
language. 


SECT.  II.]  BURNS    V.    ERBEX.  443 

Lord  Tenterden,  C.  J.,  in  Beckwith  v.  Philby  (6  Barn.  &  Cress., 
635),  says:  "The  only  question  of  law  in  this  case  is,  whether  a  eon- 
stable,  having  a  reasonable  cause  to  suspect  that  a  person  has  committed 
a  felony,  may  detain  such  person  until  he  can  be  brought  before  a 
justice  of  the  peace  to  have  his  conduct  investigated.  There  is  this 
distinction  between  a  private  individual  and  a  constable;  in  order  to 
justify  the  former  in  causing  the  imprisonment  of  a  person,  he  must  not 
only  make  out  a  reasonable  ground  of  suspicion,  but  he  must  prove  that 
a  felony  has  actually  been  committed;  whereas  a  constable  ha\'ing 
reasonable  ground  to  suspect  that  a  felony  has  been  committed,  is 
authorized  to  detain  the  party  suspected  until  inquiry  can  be  made  by 
the  proper  authorities."  (See  Hawk.  P.  C,  book  2,  chap.  12,  13;  1 
Russell  on  Crime,  594,  5;  Steph.  Cr.  L.,  242,  3;  1  Chit.  Cr.  L.,  15,  17; 
Samuel  v.  Payne,  Doug.  358;  Lawrence  v.  Hedger,  3  Taunt.  14; 
Regina  v.  Toohy,  2  Ld.  Raymond,  130;  Hobbs  r.  Brandscomb,  3  Camp. 
420;  Davis  v.  Russell,  5  Bing.  354;  Cowles  v.  Dunbar,  2  Car.  and  P. 
565.) 

In  Ledwith  v.  Catchpole  (Cad.  Cas.,  291,  and  1st  Burns,  Justice, 
p.  130,  1),  Lord  Mansfield  says,  in  an  action  against  the  ofhcer: 
"The  question  is,  whether  a  felony  has  been  committed  or  not.  And 
then  the  fundamental  distinction  is,  that  if  a  felony  has  actually 
been  committed,  a  private  person  may,  as  well  as  a  police  officer, 
arrest;  if  not,  the  question  always  turns  upon  this,  was  the  arrest 
bona  fide?  Was  the  act  done  fairly  and  in  pursuit  of  an  offender, 
or  by  design,  or  malice,  or  ill  will?  ...  It  would  be  a  terrible  thing, 
if,  under  probable  cause,  an  arrest  could  not  be  made  .  .  .  ;  many 
an  innocent  man  has  and  may  be  taken  up  upon  suspicion ;  but 
the  mischief  and  inconvenience  to  the  public  in  this  point  of  \'iew, 
is  comparatively  nothing;  it  is  of  great  consequence  to  the  police  of 
the  ccmntry." 

The  justification  of  an  arrest  by  a  private  person  was  made  in  Allen 
V.  Wright  (8  Car.  and  Payne,  522),  to  depend  on  first,  the  fact  that  a 
felony  had  been  actually  committed;  and  second,  that  the  circumstances 
were  such  that  a  reasonable  person,  acting  without  passion  and  preju- 
dice, would  have  fairly  suspected  the  plaintiff  of  being  the  person  who 
did  it. 

These  principles  are  affirmed  in  this  State  in  Mix  v.  Clute  (3  W'end. 
350),  in  very  distinct  terms.  "  If  a  felony  has  been  committed  by  the 
person  arrested,  the  arrest  may  be  justified  by  any  person  without 
warrant.  If  an  innocent  person  is  arrested  upon  suspicion  by  a  pri- 
vate individual,  such  indix-idual  is  excused  if  a  felony  was  in  fact 
committed,  and  there  was  reasonable  ground  to  suspect  the  person 
arrested.  But  if  no  felony  was  committed  by  any  one,  and  a  private 
indiWdual  arrest  without  warrant,  such  arrest  is  illegal,  though  an 
'officer  would  be  justified  if  he  acted  upon  information  from  another 
which  he  had  reason  to  believe." 


444  TILLMAN    V.    BEARD.  [CHAP.  V. 

The  fact  being  proved  in  this  case  that  a  felony  had  in  fact  been  com- 
mitted, I  have  no  hesitation  in  sa^nng  that,  however  unfortunate  it 
was  to  the  plaintiff,  the  circumstances  fully  justified  the  suspicion  which 
led  to  her  arrest.  It  is  claimed  that  these  circumstances  should  have 
been  submitted  to  the  jury.  Not  so;  a  verdict  finding  no  reasonable 
ground  of  suspicion  would  have  been  against  evidence.  There  was  no 
conflict  of  testimony,  and  that  the  arrest  was  made  without  malice, 
in  good  faith,  and  upon  reasonable  grounds,  is  to  my  mind  incontro- 
vertible. 

The  appeal  appears  to  me  to  have  been  taken  upon  a  misapprehen- 
sion of  the  construction  and  effect  of  the  statutes  conferring  power  on 
the  policeman.  I  think  the  power  perfectly  clear,  and  I  notice 
that  the  rules  and  regulations  of  the  board  of  police  are  in  con- 
formity therewith;  and  it  is  made  the  duty  of  the  officer  to  take 
the  arrested  person  immediately  before  the  Police  Court,  or  if  made 
at  night  or  when  the  courts  are  not  open,  inunediately  to  the  station 
house,  where  the  officer  on  duty  is  required  to  examine  whether  there 
is  reasonable  ground  for  the  complaint,  and  if  so,  to  cause  the  party 
to  be  taken  before  the  court  the  next  morning.  Under  such  a  system, 
innocent  parties  may  sometimes  be  subjected  to  inconvenience  and 
mortification;  but  any  more  lax  rules  would  be  greatly  dangerous  to 
the  peace  of  the  community  and  make  the  escape  of  criminals  frequent 
and  easy. 

The  judgment  should  be  affirmed. 

All  the  judges  concurring. 

Judgment  affirmed. 


TILLMAN  V.   BEARD. 
.^f^        Supreme  Court  of  Michigan,  1899. 

[Reported  121  Mich.  475.] 

Grant,  C.  J.  The  declaration  contains  four  counts,  and 
alleges  assault  and  battery,  false  imprisonment,  and  maficious 
prosecution. 

Plaintiff  was  a  vender  of  popcorn  and  peanuts.  He  had  a  machine 
5  feet  2  inches  long,  2}/^  feet  wide,  and  about  5^  feet  high.  The 
machinery  was  operated  by  steam  generated  by  a  gasoline  burner. 
Plaintiff  had  obtained  permission  from  a  merchant  in  the  \allage  of 
Morrice  to  put  his  stand  in  the  street  in  front  of  his  store.    There  was 


SECT.  II.]  STOKEY  V.    STATE.  445 

an  ordinance  prohibiting  the  exercise  of  his  vocation  without  taking 
out  a  license.  He  had  taken  out  no  Hcense.  The  defendant  was 
president  of  the  \allage.  He  found  plaintiff  located  as  above  stated, 
without  a  license.  He  took  hold  of  his  machine,  ran  it  out  into  the 
street,  and  ordered  the  \'illage  marshal  to  arrest  plaintiff.  The  mar- 
shal arrested  him,  and  took  him  to  jail,  where  he  was  confined  about 
three  hours.    He  was  then  released.^  .  .  . 

The  first  arrest,  without  a  complaint  and  warrant,  was  illegal.  Officers 
are  justified  in  arresting  without  a  warrant  only  in  cases  of  felony  and 
breaches  of  the  peace.  This  is  elementary.  It  is  needless  to  cite  au- 
thorities. Plaintiff  was  engaged  in  no  act  dangerous  to  the  public, 
or  liable  to  cause  disturbance  upon  the  streets.  The  act  was  not 
malum  per  se,  but  only  malum  prohihitum.  There  was  no  danger  of 
escape.  There  was  no  obstruction  in  the  public  highway  requiring 
immediate  removal  for  the  convenience  of  the  public.  The  respondent 
may  have  acted  in  good  faith  in  ordering  the  arrest  of  plaintiff,  but  he 
certainly  acted  hastily,  and  without  any  legal  authority.  The  statute 
did  not  give  him,  as  conservator  of  the  peace,  the  authority  to  imprison 
citizens  of  the  village  in  this  summary  manner.  By  ordering  the  arrest, 
he  made  himself  responsible  for  it,  and  liable  for  all  its  consequences. 
Webb,  Pol.  Torts,  264,  and  authorities  there  cited;  Veneman  v.  Jones, 
118  Ind.  41;  Gilbert  v.  Emmons,  42  111.  143. 


STOREY  V.   STATE. 

Supreme  Court  of  Alab.'Vma.     1882. 

[Reported  71  .4/rt.  329.] 

The  defendant  was  convicted  of  the  murder  of  Josiah  Hall.  To  the 
refusal  to  give  certain  charges  to  the  jury  the  defendant  excepted. 2 

SoMERViLLE,  J.  .  .  .  The  record  contains  some  evidence  remotel}' 
tending  to  show  that  the  prisoner  was  in  pursuit  of  the  deceased  for  the 
purpose  of  recapturing  a  horse,  which  the  deceased  liad  either  stolen, 
acquired  b}'  fraud,  or  else  unlawfully  converted  to  his  own  use. 

If  the  property  was  merely  converted,  or  taken  possession  of  in  such 
manner  as  to  constitute  a  civil  trespass,  without  any  criminal  intent,  it 
would  not  be  Ir.wful  to  recapture  it  by  any  exercise  of  force  which  would 

'  Only  so  much  of  the  opinion  as  deals  with  this  arrest  is  given.  —  Ed. 
2  This  short  statement  is  substituted  for  that  of  the  reporter.    Part  of  the  opinion 
only  is  jjiven.  —  Ed. 


446  STOKEY  V.    STATE.  [CHAF.  V, 

amount  even  to  a  breach  of  the  peace,  much  less  a  felonious  homicide. 

—  Street  r.  Sineiaif,  71  Ala.  110;  Burns  v.  Campbell,  71  Ala.  271./ 
Taking  the  hypotliesis  that  there  was  a  larceny  of  the  horse,  it  be- 
comes important  to  inquire  what  would  then  be  the  rule.  The  larceny 
of  a  horse  is  a  felony  in  this  State,  being  specially  made  so  b}*  statute, 
without  regard  to  the  value  of  the  animal  stolen.  — Code,  187G,  §  43.58. 
The  fifth  charge  requested  by  the  defendant  is  an  assertion  of  the  proi>- 
osition  that  if  the  liorse  was  feloniously  taken  and  carried  awa}*  by  the 
deceased,  and  there  was  an  apparent  necessity  for  killing  deceased  in 
order  to  recover  the  property  and  prevent  the  consummation  of  the 
felony,  the  homicide  would  be  justifiable.  The  question  is  thus  pre- 
sented, as  to  the  circumstances  under  which  one  can  kill  in  order  to 
prevent  the  perpetration  of  a  larceny  which  is  made  a  felony  by  statute 

—  a  subject  full  of  difficulties  and  conflicting  expressions  of  opinion 
from  the  ver}"  earliest  history  of  our  common-law  jurisprudence.  The 
broad  doctrine  intimated  by  Lord  Coke  was,  that  a  felon  may  be  killed 
to  prevent  the  commission  of  a  felony  without  an}'  inevitable  cause,  or 
as  a  matter  of  mere  choice  with  the  slayer.  —  3  Inst.  56.  If  such  a 
rule  ever  prevailed,  it  was  at  a  very  early  day,  before  the  dawn  of  a 
milder  civilization,  with  its  waser  system  of  more  benignant  laws;  for 
Blackstone  states  the  principle  to  be,  that  "  where  a  crime,  in  itself 
capital,  is  endeavored  to  be  committed  by  force,  it  is  lawful  to  repel  that 
force  by  the  death  of  the  party  attempting."  4  Cora.  181.  The  rea- 
son he  assigns  is,  that  the  law  is  too  tender  of  the  public  peace  and  too 
careful  of  the  lives  of  the  subjects  to  "  suffer,  with  impunity,  any  crime 
to  be  prevented  by  death,  unless  the  same,  if  committed,  would  also  be 
punished  by  death."  It  must  be  admitted  tliat  there  was  far  more 
reason  in  this  rule  than  the  one  intimated  by  Lord  Coke,  although  all 
felonies  at  common  law  were  punishable  by  death,  and  the  person  kill- 
ing, in  such  cases,  would  seem  to  be  but  the  executioner  of  the  law. 
Both  of  these  views,  however,  have  been  repudiated  by  the  later 
authorities,  each  being  to  some  extent  materially  modified.  All  admit 
that  the  killing  can  not  be  done  from  mere  choice  ;  and  it  is  none  the 
less  certain  that  the  felon}-  need  not  be  a  capital  one  to  come  within  the 
scope  of  the  rule.  Gray  v.  Combs,  7  J.  J.  Marsh.  458;  Cases  on  Self- 
Defence  (Horr.  &  Thomp.),  725,  8G7  ;  Oliver  v.  The  State,  17  Ala. 
587  ;  Carroll  v.  The  State,  23  Ala.  28. 

We  find  it  often  stated,  in  general  terms,  both  by  text  writers  and 
in  many  well  considered  cases,  that  one  may,  as  Mr.  Bishop  expresses 
it,  "  oppose  another  who  is  attempting  to  perpetrate  any  felony,  to  the 
extinguishment,  if  need  be,  of  the  felon's  existence."  —  1  Bish.  Cr.  Law, 
§§  849-50  ;  The  Slate  v.  Rutherford,  1  Hawks,  457.  It  is  observed  by 
Mr.  Bishop,  who  is  an  advocate  of  this  theory,  that  "  the  practical 
carrying  out  of  the  right  thus  conceded,  is,  in  some  circumstances, 
dangerous,  and  wherever  admitted,  it  should  be  carefully  guarded." 
1   Bish.  C'-.   Law,  ;i  855. 


SECT.  II.]  STOBEY    V.  STATE.  447 

After  a  careful  consideration  of  the  subject  we  are  fully  persuaded 
that  the  rule,  as  thus  stated,  is  neither  sound  in  principle,  nor  is  it  sup- 
ported by  the  weight  of  modern  authority'.  The  safer  view  is  that  taken 
by  Mr.  Wharton,  that  the  rule  does  not  authorize  the  killing  of  persons 
attempting  secret  felonies,  not  accompanied  by  force. — Whart.  on 
Horn.  §  539.  Mr.  Greenleaf  confines  it  to  "  the  prevention  of  any 
atrocious  crime  attempted  to  be  committed  by  force  ;  such  as  murder, 
robbery,  house-breaking  in  the  night-time,  rape,  mayhem,  or  an^'  other 
act  of  felony  against  the  person"  (3  Greenl.  Ev.  115)  ;  and  such  seems 
to  be  the  general  expression  of  the  common  law  text  writers.  —  1  Russ. 
Cr.  665-70;  4  Black.  Com.  178-80;  Whart.  Amer.  Cr.  Law,  298-403; 
1  East  P.  C.  271  ;  1  Hale,  P.  C.  488  ;  Foster,  274.  It  is  said  by  the 
authors  of  Cases  on  Self-Defence  that  a  killing  which  "  appears  to  be 
reasonably  necessarj'  to  prevent  a  forcible  and  atrocious  felony  against 
property,  is  justifiable  homicide."  "•  This  rule,"  it  is  added,  "  the 
common-law  writers  do  not  extend  to  secret  felonies,  or  felonies  not 
accompanied  with  force,"  although  no  modern  case  can  be  found  ex- 
pressl}'  so  adjudging.  The}'  further  add  :  "  It  is  pretty  clear  that  the 
rigiit  to  kill  in  defence  of  property  does  not  extend  to  cases  of  larcen}', 
which  is  a  crime  of  a  secret  character,  although  the  cases  which  illus- 
trate this  exception  are  general!}'  cases  of  theft  of  articles  of  small 
value."  —  Cases  on  Self-Defence  (Horr.  &  Thomp.),  901-2.  This 
was  settled  in  Reg.  v.  Murph}-,  2  Crawf  &  Dix  C.  C.  20,  where  the 
defendant  was  convicted  of  shooting  one  detected  in  feloniously  carry- 
ing awa}'  fallen  timber  which  he  had  stolen  from  the  premises  of  the 
prosecutor,  the  shooting  being  done  very  clearly  to  prevent  the  act, 
which  was  admitted  to  be  a  felony.  Doherty,  C.  J.,  said  :  "I  can  not 
allow  it  to  go  abroad  that  it  is  lawful  to  fire  upon  a  person  committing 
a  trespass  and  larceny  ;  for  that  would  be  punishing,  perhaps  with 
death,  oflfences  for  which  the  law  has  provided  milder  penalties."  This 
view  is  supported  by  the  following  cases:  State  v.  Vance,  17  Iowa, 
144  ;  McClelland  v.  Ka}',  14  B.  Monroe,  106,  and  others  not  necessary 
to  be  cited.     See  Cases  on  Self-Defence,  p.  901,  note. 

There  is  no  decision  of  this  court,  within  our  knowledge,  which  con- 
flicts with  these  views.  It  is  true  the  rule  has  been  extended  to  statu- 
tory' felonies,  as  well  as  felonies  at  common  law,  which  is  doubtless  the 
correct  doctrine,  but  the  cases  adjudged  have  been  open  crimes  com- 
mitted b}'  force,  and  not  those  of  a  secret  nature. — Oliver's  case,  17 
Ala.  587;  Carroll's  case,  23  Ala.  28  ;  Dill's  case,  25  Ala.  15. 

In  Pond  V.  The  People,  8  Mich.  150,  after  endorsing  the  rule  which 
we  have  above  stated,  it  was  suggested  by  Campbell,  J.,  that  there 
might  possibly  be  some  "  exceptional  cases"  not  within  its  influence,  a 
proposition  from  which  we  are  not  prepared  to  dissent.  And  again  in 
Gray  v.  Combs,  7  J.  J.  Marsh.  478,  483,  it  was  said  by  Nicholas.  J., 
that  the  right  to  kill  in  order  to  prevent  the  perpetration  of  crime 
should  depend  "  more  upon  the  character  of  the  crime,  and  the  time 
and    manner  of  its  attempted  jDerpetration,  than  upon  the  degree  of 


448  STORK Y    V.  Sl'ATE.  [CHAP.  V. 

punishment  attached  b}-  law."  There  is  much  reason  in  this  view,  and 
a  strong  case  might  be  presented  of  one's  sliooting  a  felon  to  prevent 
the  asportation  of  a  stolen  horse  in  the  nigiit-time,  where  no  opportu- 
nity is  afforded  to  recognize  the  tiiief,  or  obtain  speedy  redress  at  law. 
Both  the  Roman  and  Athenian  laws  made  this  distinction  in  favor  of 
preventing  the  perpetration  of  theft  by  night,  allowing,  in  each  instance, 
the  thief  to  be  killed  when  necessary,  if  taken  in  the  act.  —  4  Black. 
Com.  180,  181. 

The  alleged  larcen}'  in  the  present  case,  if  it  occurred  at  all,  was  in 
the  open  daylight,  and  the  defendant  is  not  shown  to  liave  been  unable 
to  obtain  his  redress  at  law.  Where' opportunity  is  afforded  to  secure 
the  punisliment  of  the  offender  b}-  due  course  of  law,  the  case  must  be 
an  urgent  one  which  excuses  a  killing  to  prevent  any  felon}*,  much  less 
one  not  of  a  forcible  or  atrocious  nature. — Whart.  Horn.  §§  536-8. 
"  No  man,  under  the  protection  of  the  law,"  says  Sir  Michael  Foster, 
"is  to  be  the  avenger  of  his  own  wrongs.  If  they  are  of  such  a  nature 
for  which  the  law  of  society  will  give  him  an  adequate  remed}',  thither 
he  ouglit  to  resort." — Foster,  296.  It  is  everywhere  settled  that  the 
law  will  not  justify  a  homicide  which  is  perpetrated  in  resisting  a  mere 
civil  trespass  upon  one's  premises  or  property,  unaccompanied  by  force, 
or  felonious  intent.  —  Carroll's  case,  23  Ala.  28  ;  Clark's  Man.  Cr.  Law, 
§§  355-7  ;  Whart.  on  Horn.  §  540.  The  reason  is  that  the  preservation 
of  human  life  is  of  more  importance  than  the  protection  of  property. 
The  law  mav  afford  ample  indemnity  for  the  loss  of  the  one,  while  it 
utterly  fails  to  do  so  for  the  otlier. 

Tlie  rule  we  have  above  declared  is  the  safer  one,  because  it  better 
comports  with  the  public  tranquillity  and  the  peace  of  society.  The 
establishment  of  any  other  would  lead  to  disorderly  breaches  of  the 
peace  of  an  aggravated  nature,  and  therefore  tend  greatl}'  to  cheapen 
human  life.  This  is  especiall}'  true  in  view  of  our  legislative  policy 
which  has  recently  brought  many  crimes,  formerly  classed  and  punished 
as  petit  larcenies  within  the  class  of  statutor}'  felonies.  It  seems  settled 
that  no  distinction  can  be  made  between  statutory  and  common  law 
felonies,  whatever  may  be  the  acknowledged  extent  of  the  rule.  Oliver's 
case,  17  Ala.  587;  Cases  on  Self-Def.  901,  867  ;  Bish.  «tat.  Cr.  §  139. 
The  stealing  of  a  hog,  a  sheep,  or  a  goat  is,  under  our  statute,  a  felony, 
without  regard  to  the  pecuniary  value  of  the  animal.  So  would  be  the 
larceny  of  a  single  ear  of  corn,  which  is  "  a  part  of  any  outstanding 
crop."  —  Code,  §  4358  ;  Acts  1880-81,  p.  47.  It  would  be  shocking  to 
the  good  order  of  government  to  have  it  proclaimed,  with  the  sanction 
of  the  courts,  that  one  may,  in  the  broad  daylight,  commit  a  wilful 
homicide  in  order  to  prevent  the  larceny  of  an  ear  of  corn.  In  our 
judgment  the  fifth  charge,  requested  by  the  defendant,  was  properly 
refused. 

It  cannot  be  questioned,  however,  that  if  there  was  in  truth  a  larceny 
of  the  prisoner's  horse,  he,  or  any  other  private  i)(m-<ou,  had  a  lawful 
right  to  pursue  the  thief  for  the  purpose  of  arresting  him,  and  of  recai> 


SECT.  II.]  THOMAS    V.    KINKEAD.  449. 

turing  the  stolen  property.  —  Code,  §§  4668-70;  1  Bish.  Cr.  Proc 
§§  164-5.  He  is  not  required,  in  such  case,  to  inform  the  party  flee- 
ing of  his  purpose  to  arrest  him,  as  in  ordinary  cases.  —  Code,  §  4669. 
And  he  could,  if  resisted,  repel  force  with  force,  and  need  not  give 
back,  or  retreat.  If,  under  such  circumstances,  the  party  making 
resistance  is  unavoidably  killed,  the  homicide  would  be  justitial^le.  2 
Bish.  Cr.  Law,  §  647  ;  1  Russ.  Cr.  665 ;  State  v.  Roane,  2  Dev.  58.  If 
the  prisoner's  purpose  was  honestly  to  make  a  pursuit,  he  would  not  for 
this  reason  be  chargeable  with  the  imputation  of  having  wrongfully 
brought  on  the  difficulty;  but  the  law  would  not  permit  him  to  resort  to 
the  pretence  of  pursuit,  as  a  mere  colorable  device,  beneath  which  to 
perpetrate  crime. 


THOMAS   V.  KINKEAD. 

SupRKME  Court  of  Arkansas.     1892. 

[Reported  55  Ark.  502.] 

Mansfield,  J.  This  action  was  brought  by  the  w  idow  and  minor  chil- 
dren of  John  Thomas,  deceased,  against  Ewing  Kinkead,  a  constable 
of  Pulaski  county,  and  the  sureties  on  his  official  bond,  to  recover 
damages  for  the  alleged  wrongful  killing  of  Thomas  by  Jesse  F.  Heard, 
a  deput}'  of  the  defendant  Kinkead  as  such  constable.  Heard  was 
also  made  a  defendant.  The  complaint  avers  that  the  act  of  killing 
was  committed  under  color  of  a  warrant  for  the  arrest  of  Thomas,  to 
answer  for  a  misdemeanor  charged  against  him  before  a  justice  of  the 
peace,  and  that  it  was  done  wantonly  and  without  cause. 

The  defendants  by  their  pleading  justify  the  killing  as  having  been 
done  by  Heard  in  self-defence,  while  lawfully  exercising  his  power  to 
execute  the  warrant  mentioned  in  the  complaint,  and  while  Thomas 
was  unlawfully  resisting  arrest  and  attempting  to  escape.  The  appeal 
is  from  a  judgment  rendered  on  the  verdict  of  a  jury  against  the 
plaintiffs. 

The  death  of  Thomas  resulted  from  a  wound  inflicted  by  a  pistol- 
shot,  and  the  evidence  as  to  the  immediate  circumstances  of  the  homi- 
cide was  such  as  to  make  it  questionable  whether  he  had  been  actualU' 
placed  under  arrest  before  he  was  shot.  It  was  contended  at  tiie  trial 
that  his  arrest  had  been  accomplished,  and  that  he  was  killed  while 
attempting  to  break  away  from  the  custod}'  of  the  officer.  As  appli- 
cable to  this  view  of  the  facts,  the  court,  against  the  objection  of  the 
plaintiffs,  gave  the  jury  the  following  instruction  :  '*  If  the  jury  find 
from  the  evidence  that  Heard  had  actuall}'  arrested  Thomas,  whether 
for  felon}'  or  misdemeanor,  if  Thomas  attempted  to  get  away,  Heard 
had  a  right  to  shoot  him,  if  this  shooting  was  necessary  to  prevent 


450  THOMAS    V.    KINKEAD.  [CHAP.  V. 

his  escape;  provided  Heard  acted  in  the  exercise  of  due  caution  and 
prudence."  • 

In  repeating  substantially  the  same  charge  in  a  different  connection, 
the  jury  were  told  that  life  can  be  taken  to  prevent  an  escape  ouh*  in 
case  of  extreme  necessit}'  and  when  the  officer  has  exhausted  all  other 
means  of  enforcing  the  prisoner's  submission.  The  duty  which  the  law 
enjoins  upon  an  officer  to  exercise  his  authorit}'  with  discretion  and 
prudence  was  also  fully  and  properly  stated,  and  the  jury  were  in  effect 
instructed  that  the  needless  killhig  of  a  prisoner  would  in  all  cases  be 
wrongful.  In  another  part  of  the  charge  it  was  stated,  as  an  admis- 
sion of  the  pleadings,  that  the  offence  of  which  Thomas  was  accused 
was  a  misdemeanor.  And  in  other  respects  the  charge  of  the  court  was 
such  that  the  plaintiffs  were  not  prejudiced  by  the  instruction  we  have 
quoted,  if  the  life  of  a  prisoner  may  be  taken  under  an}'  circumstances 
merel}'  to  prevent  his  escape  after  arrest  for  a  misdemeanor. 

The  doctrine  of  the  court's  charge  is  approved  b}-  Mr.  Bishop,  who 
states  it  in  his  work  on  Criminal  Procedure  substantialh'  in  the  lan- 
guage emplo3'ed  by  the  trial  judge.  1  Bishop,  Cr.  Pro.,  sec.  161.  In 
his  note  on  the  section  cited,  the  author  refers  to  his  work  on  Criminal 
Law  (vol.  2,  sees.  647,  650)  and  to  two  cases  decided  bj-  the  Supreme 
Court  of  Texas  —  Caldwell  v.  State,  41  Texas,  86,  and  Wright  v.  State, 
44  Texas,  645.  In  the  first  of  these  cases,  a  prisoner  who  had  been 
arrested  for  horse  stealing  broke  away  from  the  custody  of  the  officer, 
and  the  latter  shot  and  killed  him  as  he  ran  in  the  effort  to  make  his 
escape.  It  was  held  that  the  officer  was  rightl}-  convicted  of  murder 
in  the  second  degree  —  the  evidence  showing  that  the  prisoner  was 
unarmed,  and  neither  attacking  nor  resisting  the  officer.  The  judge 
who  delivered  the  opinion  said:  "  The  law  places  too  high  an  estimate 
on  a  man's  life,  though  he  be  ...  a  prisoner,  to  permit  an  officer  to 
kill  him  while  unresisting,  simply  to  prevent  an  escape."  But  as  the 
arrest  was  for  a  felon}',  it  ma}'  be  that  the  decision  was  controlled  by  a 
statute  of  that  State  which  provides  that  an  "  officer  executing  an  order 
of  arrest  shall  not  in  any  case  kill  one  who  attempts  to  escape,  unless 
in  making  or  attempting  such  escape,  the  life  of  the  officer  is  endangered 
or  he  is  threatened  with  great  bodil}'  injurv."  However  that  ma}'  have 
been,  the  case  gives  no  support  to  the  text  in  connection  with  which  it 
is  cited.  Nor  is  such  support  to  be  found  in  the  case  of  Wright  v. 
State,  where  the  decision  was  that  the  power  conferred  by  a  Texas 
statute  upon  an  officer  having  the  custody  of  a  convicted  felon  to  take 
the  life  of  the  prisoner  to  prevent  his  escape  does  not  extend  to  an  officer 
attempting  to  re-arrest  an  escaped  convict. 

The  rule  laid  down  without  qualification  in  "  Criminal  Procedure  "  is 
stated  only  as  "  a  general  proposition  "  in  one  of  the  sections  referred 
to  in  the  work  on  Criminal  Law.  From  the  text  of  the  latter  reference 
is  made  to  the  treatise  of  Russell  on  Crimes  and  to  the  earlier  works  of 
Hale  and  Hawkins.  But  these  writers  all  appear  to  limit  the  applica- 
tion of  the  rule  to  cases  of  felony  or  to  cases  where  the  jailer  or  other 


SECT,  II.]  THOMAS    V.    KINKEAD.  451 

officer  having  the  custody  of  a  prisoner  is  assaulted  b}'  the  latter  in  his 
effort  to  escape  and  the  officer  kills  him  in  self-defence.  1  Hale,  P.  C 
481,  496  ;  1  Russell  on  Crimes,  666,  667  ;  1  Hawkins,  P.  C.  81,  82. 
The  decisions  cited  by  Mr.  Bishop  in  the  section  last  referred  to,  as  far 
as  we  have  had  the  opportunity  to  examine  them,  go  no  further  than  the 
authors  we  have  mentioned.  U.  S.  v.  Jailer,  etc.,  2  Abb.  265  ;  State 
V.  Anderson,  1  Hill,  S.  B.  327;  Regina  v.  Dadson,  14  Jur.  1051.  See 
also  4  Blackstone,  180. 

The  case  of  State  v.  Sigman,  106  N.  C.  728;  S.  C.  11  S.  E.  Rep. 
520,  is  i-elied  upon  as  sustaining  the  instruction  in  question.  In  that 
case  an  officer  was  indicted  for  an  assault  with  a  deadly  weapon,  com- 
mitted by  discharging  a  pistol  at  a  person  accused  of  a  misdemeanor, 
and  who  had  escaped  from  the  officer's  custody  and  was  fleeing  to  avoid 
rearrest.  The  officer  being  unable  to  overtake  the  prisoner  fired  upon 
him.  He  was  convicted  and  the  judgment  of  the  trial  court  was  af- 
firmed, the  Supreme  Court  holding  that  the  defendant  was  guilty  of  an 
assault,  whether  his  intention  in  firing  was  to  hit  the  escaped  prisoner 
or  simply  to  intimidate  him  and  thereby  induce  him  to  surrender.  This 
ruling  followed  as  a  conclusion  from  two  propositions  stated  in  the 
opinion.  These  are:  (1)  That  an  officer  who  kills  a  person  charged 
with  a  misdemeanor  and  fleeing  from  him  to  avoid  arrest  will  at  least 
be  guilty  of  manslaughter.  (2)  That  where  a  prisoner  "  has  already 
escaped,"  no  means  can  be  used  tore-capture  him  which  would  not  have 
been  justifiable  in  making  the  first  arrest ;  and  tliat  if  in  pursuing  him 
the  officer  intentionalh^  kills  him,  it  is  murder.  But  the  second  proposi- 
tion is  preceded  b}'  the  following  paragraph  of  the  opinion  u[K)n  which 
the  appellees  specially  rely:  "After  an  accused  person  has  been 
arrested,  an  officer  is  justified  to  detain  him  in  custody,  and  he  maj^ 
kill  his  prisoner  to  prevent  his  escape,  provided  it  becomes  necessary, 
whether  he  be  charged  with  a  felony  or  a  misdemeanor."  Citing  the 
first  volume  of  Bishop's  Criminal  Procedure.  The  view  thus  expressed 
does  not  appear  to  be  consistent  with  the  court's  decision.  ISor  does  it 
seem  to  be  an  unqualified  approval  of  the  rule  as  it  is  stated  in  Bishop's 
Criminal  Procedure.  As  stated  in  the  quotation  made,  it  seems  to  be 
laid  down  with  reference  onl^'  to  cases  where  a  prisoner  resists  by  force 
the  effort  of  the  officer  to  prevent  him  from  "  breaking  away  "  and  is 
killed  in  the  struggle  or  affra}'  which  follows.  In  the  case  then  before 
the  court  the  prisoner  had  entirely  escaped ;  and  having  been  subse- 
quently found,  had  run  some  distance  before  he  was  shot  at.  There 
was  no  occasion  therefore  for  deciding  whether  the  shooting,  although 
not  in  self-defence,  would  have  been  justifiable  if  it  had  been  done  in  an 
effort  to  detain  the  prisoner  in  the  officer's  custody.  But  we  are  wholly 
unable  to  perceive  any  ground  for  a  distinction  between  the  latter  case 
and  that  on  which  the  court's  ruling  was  made.  Iii  a  paragraph  of  the 
opinion  preceding  that  from  which  we  have  quoted,  in  speaking  of 
the  case  of  one  who,  being  charged  with  a  misdemeanor,  flees  from 
the  officer  to  avoid  arrest,  the  court  said:  "The  accused  is  shielded. 


452  THOMAS    V.    KIXKEAD.  [CHAP.  V. 

.  .  .  even  from  an  attempt  to  kill,  .  .  .  by  the  merciful  rule  which 
forbids  the  risk  of  human  life  or  the  shedding;  of  blood  in  order  to  bring 
to  justice  one  who  is  cliarged  with  so  trivial  an  offence,  when  it  is  prob- 
able that  he  can  be  arrested  another  day  and  held  to  answer."  This 
humane  principle  was  permitted  to  prevail  against  the  officer  in  the 
ease  decided,  although  the  person  assaulted  had  been  arrested  and  was 
shot  at  in  the  endeavor  made  to  re-arrest  him.  Why  should  it  not 
also  protect  the  life  of  the  prisoner  arrested  on  a  similar  charge  who 
endeavors  forcibly  to  break  away  from  the  officer  but  offers  no  violence 
to  the  latter  endangering  his  life  or  exposing  his  person  to  great 
harm  ? 

The  case  of  Head  v.  Martin,  3  S.  W.  Rep.  (Ky.)  622,  is  also  cited  by 
the  appellees.  But  the  only  ruling  there  made,  as  indicated  by  the 
syllabus,  was  that  a  peace  officer,  having  arrested  one  accused  of  a 
misdemeanor,  cannot,  when  he  is  fleeing,  kill  him  to  prevent  his  escape  ; 
and  all  that  the  court  says  is  strongly  against  the  contention  of  the  ap- 
pellee on  the  point  we  are  considering.  On  the  point  embraced  in  the 
quotation  of  counsel  from  the  opinion,  in  that  case,  the  jury  in  the 
present  case  were  properl}'  charged  by  instructions  other  than  that  now 
under  consideration.  The  only  question  presented  by  the  latter  is 
whether  an  officer  having  in  his  custody  a  prisoner  accused  of  a  misde- 
meanor may  take  his  life  if  he  attempts  to  break  away,  where,  in  the 
language  of  the  court's  charge,  "  no  other  means  are  available  "  to 
prevent  his  escape.  A  resort  to  a  measure  so  extreme  in  cases  of  mis- 
demeanor was  never  permitted  by  the  common  law.  1  East,  P.  C.  302. 
That  law  has  not,  it  is  believed,  lost  any  of  its  humanity  since  the  time 
of  the  writer  we  have  just  cited;  and  no  statute  of  this  State  operates 
to  restrain  its  mercy.  We  have  adopted  its  rule  in  making  arrests  in 
cases  of  felony.  (Carr  ij.  The  State,  43  Ark.  99.)  But  without  legis- 
lative authority  the  severity  of  a  remote  age  ought  not  to  be  exceeded 
in  dealins:  with  those  who  are  accused  of  smaller  offences. 

East,  in  his  Pleas  of  the  Crown,  after  stating  the  rule  that  a  felon 
fleeing  from  justice  may  be  lawfull}'  killed  '''  where  he  cannot  be  other- 
wise overtaken,"  says:  "The  same  rule  holds  if  a  felon  after  arrest 
break  avvay  as  he  is  carrying  to  gaol,  and  his  pursuers  cannot  retake 
without  killing  him.  But  if  he  may  be  taken  in  any  case  without  such 
severity,  it  is  at  least  manslaughter  in  him  who  kills  him."  (1  East, 
P.  C,  298.)  No  distinction,  it  will  be  noticed,  is  made  between  the 
case  of  a  felon  fleeing  from  arrest  and  that  of  one  "  breaking  away  " 
after  arrest;  and  such  is  still  the  law.  No  reason  whatever  is  given 
for  making  such  a  distinction  in  cases  of  misdemeanor,  and  we  have 
found  no  adjudged  case  which  in  our  opinion  supports  it.  See  Clem- 
ments  v.  State,  50  Ala.  117;  Head  v.  Martin,  3  S.  W.  supra;  Reneaii 
V.  State,  2  Lea,  720. 

In  United  States  v.  Clark,  31  Fed.  Rep.  710,  Mr.  Justice  Brown 
says:  "The  general  rule  is  well  settled,  by  elementary  writers  upon 
criminal  law,  that  an  officer  having  custody  of  a  person  charged  with 


4 


SECT.  II.]  THOMAS    V.    KINKEAD.  453 

felony  may  take  his  life,  if  it  becomes  absolutely  necessary  to  do  so  to 
prevent  his  escape;  but  he  maj'  not  do  this  if  he  be  charged  simply  with 
a  misdemeanor,  the  theory  of  the  law  being  that  it  is  better  that  a  mis- 
demeanant escape  than  that  human  life  be  taken."  And  he  expresses 
a  doubt  whether  the  law  permitting  life  to  be  taken  to  prevent  an  escape 
is  applicable  at  the  present  day  even  to  all  cases  of  felony.  (See  also 
State  V.  Bryant,  65  N.  C.  355)  ;  Reneau  v.  State,  2  Lea,  si/pra. 

It  has  been  said  that  the  officers  of  the  law  are  "  clothed  with  its 
sanctitj'  "  and  "  represent  its  majest}'."  Head  v.  Martin,  3  S.  W.  Rep. 
623.  And  the  criminal  code  has  provided  for  the  punishment  of  those 
who  resist  or  assault  them  when  engaged  in  the  discharge  of  their 
duties.  Mansf.  Dig.,  sees.  1765-67.  But  the  law-making  power 
itself  iould  not,  under  the  constitution,  inflict  the  death  penalt}' 
as  a  punishment  for  a  simple  misdemeanor.  (Art.  2,  sec.  9,  const.) 
And  it  would  ill  become  the  "  majesty  "  of  the  law  to  sacrifice  a  human 
life  to  avoid  a  failure  of  justice  in  the  case  of  a  petty  offender  who  is 
often  brougfht  into  court  without  arrest  and  dismissed  with  a  nominal 
fine.  It  is  admitted  that  an  officer  cannot  lawfully  kill  one  who  merely 
flees  to  avoid  arrest  for  a  misdemeanor,  although  it  may  appear  that  he 
can  never  be  taken  otherwise.  If  he  runs,  then,  before  the  officer  has 
laid  his  hands  upon  him  with  words  of  ariest,  he  may  do  so  without 
danger  to  his  life.  But  if,  bj'  surprise  or  otherwise,  he  be  for  a  moment 
sufflcientl}^  restrained  to  constitute  an  arrest  and  then  "  break  awa}'," 
the  officer  may  kill  him  if  he  cannot  overtake  him.  Such  is  the  effect 
of  the  argument  and  of  the  rule  in  support  of  which  it  is  made.  We 
can  see  no  principle  of  reason  or  justice  on  which  such  a  distinction  can 
rest,  and  we  therefore  hold  that  the  force  or  violence  which  an  officer 
may  lawfully  use  to  prevent  the  escape  of  a  person  arrested  for  a  mis- 
demeanor is  no  greater  than  such  as  might  have  been  rightfull}-  emplo3'ed 
to  eff'ect  his  arrest.  In  making  the  arrest  or  preventing  the  escape,  the 
officer  may  exert  such  physical  force  as  is  necessary'  on  the  one  hand 
to  effect  the  arrest  by  overcoming  the  resistance  he  encounters,  or  on 
the  other  to  subdue  the  efforts  of  the  prisoner  to  escape  ;  but  he  can- 
not in  either  case  take  the  life  of  the  accused,  or  even  inflict  upon  him 
a  great  bodily  harm,  except  to  save  his  own  life  or  to  prevent  a  like 
harm  to  himself 

The  circuit  court  erred  in  so  much  of  its  charge  as  was  not  in  har- 
monj-  with  this  statement  of  the  law.  In  other  respects  the  instructions 
contain  no  error  prejudicial  to  the  appellant.  For  the  error  indicated 
the  judgment  will  be  reversed,  and  the  cause  remanded  for  a  new 
trial. 


4r)4  REGINA    V.    GRIFFIN.  [CHAP.    V. 

Foster,  C.  L.  262.  ParentS:  masters,  and  other  persons,  having 
autliorit}-  in  foro  domestico^  may  give  reasonable  correction  to  those 
under  their  care  ;  and  if  death  ensneth  without  tlieir  fault,  it  will  he 
no  more  than  accidental  death.  But  if  tlie  correction  exceedeth  the 
bounds  of  due  moderation,  either  in  the  measure  of  it  or  in  the 
instrument  made  use  of  for  that  purpose,  it  will  be  either  murder  or 
manslaughter  according  to  the  circumstances  of  the  case. 


REGINA   V.   GRIFFIN. 

Liverpool  Assizes.     1869. 

[Reported  1 1  Cox  C.  C.  402.] 

The  prisoner,  David  Griffin,  was  indicted  for  the  manslaughter  of 
Ann  Griffin,  at  Liverpool,  on  the  7th  of  November,  1869. 

The  deceased,  who  was  tlie  daughter  of  the  prisoner,  was  two  j'ears 
and  six  months  old,  and  her  death  took  place  under  the  following 
circumstances. 

On  the  7th  of  November  the  prisoner's  wife  had  occasion  to  leave 
the  house,  the  deceased,  with  her  brother  and  sister,  being  at  that  time 
in  bed,  in  a  room  adjoining  that  in  which  the  prisoner  was  sitting. 
During  the  absence  of  his  wife,  the  prisoner  heard  the  deceased  crying, 
and  went  into  the  room  where  the  deceased  was,  and  took  her  out  of 
bed  into  another  room.  As  he  was  doing  this  she  committed  some 
childish  fault ;  this  made  the  prisoner  angry  ;  and,  after  having  placed 
her  in  the  other  room,  he  got  a  strap  one  inch  wide  and  eighteen 
inches  long  and,  having  turned  up  her  clothes,  gave  her  from  six  to 
twelve  severe  strokes  over  the  lower  part  of  the  back  and  right  tliigh. 
Deceased  did  not  cry  much  at  the  time,  but  appeared  very  frightened ; 
she  never  recovered  from  the  effects,  and  died  on  the  following 
Wednesday,  November  10. 

Medical  evidence  was  ijiven  to  the  effect  that  tlie  deceased  had  been 
a  healthy  child  and  well  nourished,  and  that  the  cause  of  death  was 
congestion,  accelerated  bv  a  shock  to  the  nervous  system,  produced 
by  the  severe  beating  which  the  prisuner  iiad  given  it.  the  marks  of 
which  were  clearly  seen  at  the  -post  rnorteiu  examination  on  the  day 
following  her  death. 

Ildirtkorne,  for  the  prisoner,  contended  that  there  was  no  case  to 
go  to  the  jury,  for  the  prisoner  had,  as  a  father,  a  perfect  right  to  cor- 
rect his  child. 

TkUwell,  for  the  prosecution,  contended  that,  although  a  ftither 
might  correct  his  child,  the  law  did  not  permit  him  to  use  a  weapon 


'W 


SECT.  II.J  CLEARY  V.   BOOTH.    ^  455 

improper  for  the  purpose  of  correction.     He  cited  Reg.   r.  Hopley  (2 
F.  &  F.  201.) 

Martin,  B.  (after  having  consulted  with  Willes,  J.,  who  concurred 
in  his  opinion).  The  law  as  to  correction  has  reference  only  to  a 
child  capable  of  appreciating  correction,  and  not  to  an  infant  two 
years  and  a  half  old.  Although  a  slight  slap  may  be  lawfully  given  to 
an  infant  by  her  mother,  more  violent  treatment  of  an  infant  so  Aoung 
b}-  her  father  would  not  be  justifiable  ;  and  the  only  question  for  the 
jurv  to  decide  is,  whether  the  child's  death  was  accelerated  or  caused 
by  the  blows  inflicted  by  the  prisoner. 

Guilty. 


CLEARY  y.  BOOTH. 

High  Court  of  Justice,  Queen's  Bench  Division.      1893. 

[Reported  1893,  1  Q.  B.  465.] 

Lawrance,  J.  The  question  in  this  case  is  not  an  easj'  one  ;  there 
is  no  authority,  and  it  is  a  case  of  first  impression.  The  question  for 
us  is  whether  the  head  master  of  a  board  school  is  justified  in  inflicting 
corporal  punishment  upon  one  of  his  scholars  for  an  act  done  outside 
the  limits  of  the  school,  and  the  appellant's  counsel  has  in  his  argument 
relied  on  what  might  happen  if  a  boy  were  not  punished  by  the  master 
for  such  acts.  The  facts  seem  to  be  that  a  boy  while  coming  to  the 
appellant's  school  was  assaulted  by  another  boy  belonging  to  the  same 
school  ;  that  complaint  was  made  to  the  appellant,  who  then  and  there 
punished  the  bo}'  who  had  committed  the  assault  and  also  the  respond- 
ent, who  was  in  his  company.  The  first  observation  that  occurs  to  one 
to  make  is  that  one  of  the  greatest  advantages  of  any  punishment  is 
that  it  should  follow  quickly  on  the  offence.  The  cases  cited  to  us 
show  that  the  schoolmaster  is  in  the  position  of  the  parent.  What 
is  to  become  of  a  boy  between  his  school  and  his  home?  Is  he  not 
under  the  authority  of  his  parent  or  of  the  schoolmaster?  It  cannot 
be  doubted  that  he  is  ;  and  in  my  opinion  among  the  powers  delegated 
by  the  parent  to  the  schoolmaster,  such  a  power  as  was  exercised  bj' 
the  appellant  in  this  case  would  be  freel}-  delegated.  If  we  turn  to  the 
Code  we  find  that  there  are  several  things  for  wln"ch  a  grant  may  be 
given,  including  discipline  and  organization,  and  that  the  children  are 
to  be  brought  up  in  habits  of  good  manners  and  language,  and  of  con- 
sideration for  others.  Can  it  be  reasonablv  argued  that  the  onlv  ri^ht 
of  a  schoolmaster  to  inflict  punishment  is  in  respect  of  acts  done  in  the 
school,  and  that  it  is  onlj'  while  the  boys  are  there  that  he  is  to  see 
that  the}^  are  well-mannered,  but  that  he  has  exceeded  all  the  authority 
delegated  to  him  by  the  parent  if  he  punishes  a  bo}'  who  within  a  yard 
of  the  school  is  guilty  of  gross  misbehavior?     It  is  difficult  to  express 


456  CLEARY   V.   BOOTH  [CIIAP.  V. 

in  words  the  extent  of  the  schoohnaster's  autliority  in  respect  to  the 
punislniient  of  liis  pupils;  but  in  my  opinion  his  authorit}-  extendi,  not 
oiiIn"  to  acts  done  in  school,  but  also  to  cases  where  a  complaint  of  acts 
done  out  of  school,  at  any  rate  while  going  to  and  from  school,  is  made 
to  the  schoolmaster.  In  the  present  case  I  think  that  weight  may  prop- 
erly be  placed  on  the  fact  that  the  act  for  which  the  boy  was  punished 
was  done  to  another  pupil  of  the  same  school.  I  think,  therefore,  that 
the  justices  were  wrong  in  convicting  the  appellant  as  they  did,  and 
that  the  case  must  be  sent  back  to  them  to  find  as  a  fact  whether  the 
punishment  was  excessive. 

Collins,  J.  I  am  of  the  same  opinion.  It  is  clear  law  that  a  father 
has  the  right  to  inflict  reasonable  personal  chastisement  on  his  son.  It 
is  equall}'  the  law,  and  it  is  in  accordance  with  very  ancient  practice, 
that  he  ma}-  delegate  this  right  to  the  schoolmaster.  Such  a  right  has 
alwa3'S  commended  itself  to  the  common  sense  of  mankind.  It  is  clear 
that  the  relation  of  master  and  pupil  carries  with  it  the  right  of  reason- 
able corporal  chastisement.  As  a  matter  of  common  sense,  how  far 
is  this  power  delegated  bj"  the  parent  to  the  schoolmaster?  Is  it  lim- 
ited to  the  time  during  which  the  bo}^  is  within  the  four  walls  of  the 
school,  or  does  it  extend  in  an}'  sense  beyond  that  limit?  In  my  opin- 
ion the  purpose  with  which  the  parental  authority  is  delegated  to  the 
schoolmaster,  who  is  entrusted  with  the  bringing  up  and  discipline  of 
the  child,  must  to  some  extent  include  an  authority  over  the  child 
while  be  is  outside  of  the  four  walls.  It  ma}'  be  a  question  of  fact  in 
each  case  whether  the  conduct  of  the  master  in  inflicting  corporal  pun- 
ishment is  right.  Very  grave  consequences  would  result  if  it  were  held 
that  the  parent's  authority  was  exclusive  up  to  the  door  of  the  school, 
and  that  then,  and  only  then,  the  master's  authorit}^  commenced;  it 
would  be  a  most  anomalous  result  to  hold  that  in  such  a  case  as  the 
present  the  boy  who  had  been  assaulted  had  no  remedy  b}'  complaint 
to  his  master,  who  could  punish  the  assailant  by  a  thrashing,  but  must 
go  before  the  magistrate  to  enforce  a  remed}'  between  them  as  citizens. 
Not  only  would  such  a  position  be  unworkable  in  itself,  but  the  Code, 
which  has  the  force  of  an  Act  of  Parliament,  clearly  contemplates  that 
the  duties  of  the  master  to  his  pupils  are  not  limited  to  teaching.  A 
grant  may  be  made  for  discipline  and  organization,  and  it  is  clear  that 
he  is  entrusted  with  the  moral  training  and  conduct  of  his  pu[)ils.  It 
cannot  be  that  such  a  dutj'  or  power  ceases  the  moment  that  tlie  pupil 
leaves  school  for  home;  there  is  not  much  opportunity  for  a  boy  to 
exhibit  his  moral  conduct  while  in  school  under  the  eye  of  the  master : 
the  opportunity  is  while  he  is  at  play  or  outside  the  school ;  and  if  the 
schoolmaster  has  no  control  over  the  ])oys  in  their  relation  to  each  other 
except  when  they  are  within  the  school  walls,  this  object  of  the  Code 
would  be  defeated.  In  such  a  case  as  the  present,  it  is  obvious  that 
the  desired  impression  is  best  brought  about  b}'  a  summary  and  imme- 
diate punishment.     In  ray  opinion  parents  do  contemplate  such  an 


SECT.  11.]  FEETICH    V.    MICHENEE.  457 

exercise  of  authorit}'  by  the  schoolmaster.  I  should  be  sorr}'  if  I  felt 
myself  driven  to  come  to  the  opposite  concliisicjii,  and  am  glad  to  be 
able  to  sa}'  that  the  principle  shows  tliat  the  aiitliority  delegated  to  the 
schoolmaster  is  not  limited  to  tlie  four  walls  of  the  school.  It  is  always 
a  question  of  fact  whether  the  act  done  was  outside  the  delegated 
authority;  but  in  the  present  case  I  am  satisfied,  on  the  facts,  that 
it  was  obviously  within  it.  The  question  of  excess  is  one  for  the 
magistrates. 


FERTICH  V.  MICHENER. 

Supreme  Court  of  Indiana,  1887. 

[Reported  111  Ind.  472.] 

NiBLACK,  J.  This  was  an  action  by  Nora  S.  Michener,  a  minor 
child,  acting  through  Louis  T.  Michener,  her  father  and  next  friend, 
against  William  H.  Fertich  for  alleged  injuries  received  while  attending 
a  public  school  of  which  Fertich  Vvas  the  superintendent. 
I  The  complaint  was  in  three  paragraphs.  .  .  .  The  second  paragraph 
/charged  the  defendant  with  having,  on  the  15th  day  of  January,  1885, 
wrongfully  and  unlawfully  restrained  the  plaintiff  of  her  liberty  for  a 
period  of  thirty  minutes.^ 

The  court  also  instructed  the  jury  to  the  effect  that  if  the  appellee 
was  at  any  time  detained  in  the  school-room  for  a  period  of  ten  or 
fifteen  minutes  after  her  class  was  dismissed,  as  a  penalty  for  having 
asked  leave  to  retire  and  having  retired  from  the  room  during  school 
hours,  such  detention  was  a  false  imprisonment,  and  that  a  teacher 
who  might  refuse  to  permit  a  pupil  to  retire  from  the  school-room, 
in  accordance  with  the  rule  set  out  in  the  third  paragraph  of  the  com- 
plaint, would  be  liable  for  whatever  damages  thereby  resulted  to  the 
pupil. 

In  our  view  of  the  principles  underlying  this  case,  that  instruction- 
was  also  erroneous.  Such  a  detention  after  the  rest  of  tiie  class  was 
dismissed  may  have  been  unjust,  in  the  particular  instance,  as  well  as 
in  a  general  sense,  to  the  appellee,  and  it,  as  well  as  the  refusal  of  per- 
mission to  retire,  may  have  been  a  violation  of  the  spirit  of  the  rule 
referred  to;  but,  upon  the  hypothesis  stated  in  the  instruction,  the 
detention  did  not  amount  to  a  false  imprisonment,  and  the  refusal  of 
permission  to  retire  did  not  constitute  a  cause  of  action  against  the 
teacher. 

The  recognized  doctrine  now  is,  that  a  school  officer  is  not  personally 
liable  for  a  mere  mistake  of  judgment  in  the  government  of  his  school. 

^  Only  so  much  of  the  case  as  deals  with  this  paragraph  of  the  complaint  is  here 
printed.  —  Ed. 


458  HERITAGE    V.    DODGE.  [CHAP.  V. 

To  make  him  so  liable  it  must  be  shown  that  he  acted  in  the  matter 
complained  of  wantonly,  wilfully,  or  maliciously.  Cooper  v.  McJunkin, 
4  Ind.  290;  Gardner  i'.  State,  4  Ind.  632;  Danenhoffer  v.  State,  79  Ind. 
75;  Elmore  v.  Overton,  104  Ind.  458  (54  Am.  R.  343);  Churchill  v. 
Fewkes,  13  Bradw.  520;  McCormick  v.  Burt,  95  111.  263  (35  Am.  R. 
163);  Harman  v.  Tappenden,  1  East,  555;  Dritt  r.  Snodgrass,  66  Mo. 
286  (27  Am.  R.  343). 

The  instruction,  consequently  fell  short  of  telling  the  jury  all  that 
was  necessary  to  establish  a  liability  for  either  the  detention  or  the 
refusal  referred  to  by  it. 

The  detention  or  keeping  in  of  pupils  for  a  short  time  after  the  rest 
of  the  class  has  been  dismissed,  or  the  school  has  closed,  as  a  penalty 
for  some  misconduct,  shortcoming,  or  mere  omission,  has  been  very 
generally  adopted  by  the  schools,  especially  those  of  the  lower  grade, 
and  it  is  now  one  of  the  recognized  methods  of  enforcing  discipline  and 
promoting  the  progress  of  the  pupils  in  the  common  schools  of  the 
State.  It  is  a  mild  and  non-aggressive  method  of  imposing  a  penalty, 
and  inflicts  no  disgrace  upon  the  pupil.  The  additional  time  thus  spent 
in  studying  his  lessons  presumably  inures  to  the  benefit  of  the  pupil. 
However  mistaken  a  teacher  may  be  as  to  the  justice  or  propriety  of 
imposing  such  a  penalty  at  any  particular  time,  it  has  none  of  the  ele- 
ments of  false  imprisonment  about  it,  unless  imposed  from  wanton, 
wilful,  or  malicious  motives.  In  the  absence  of  such  motives,  such  a 
mistake  amounts  only  to  an  error  of  judgment  in  an  attempt  to  enforce 
discipline  in  the  school,  for  which,  as  has  been  stated,  an  action  will 
not  lie.  And  in  this  connection  it  is  perhaps  proper  to  say  that  there 
is  nothing  in  the  evidence,  as  we  construe  it,  tending  to  show  that  the 
appellee's  teacher  was  actuated  by  wantonness,  wilfulness,  or  malice  in 
any  of  the  alleged  wrongs  of  which  the  appellee  has  complained.  As 
there  was  a  failure  of  proof  as  against  the  teacher,  the  necessary  in- 
ference is  that  the  evidence  was  insufficient  to  establish  a  cause  of 
action  against  the  appellant.  As  to  what  constitutes  a  reasonable  rule 
for  the  government  of  a  school,  see  the  case  of  Burdick  v.  Babcock,  31 
Iowa,  562,  above  cited. 

The  judgment  is  reversed,  with  costs. 


(y  HERITAGE  v.   DODGE. 

Supreme  Court  of  New  Hampshire,  1886. 

[Reported  64  N.  II.  297.] 

Trespass,  for  assault  and  battery.  Plea,  the  general  issue,  with  a 
brief  statement  that  the  defendant  was  teacher  of  a  public  school  in 
which  the  plaintiff  was  a  scholar,  and  that  the  assault  and  battery  com- 


SECT.  II.]  HERITAGE   V.   DODGE.  459 

plained  of  was  the  infliction  of  reasonable  punishment  of  the  plaintiff 
for  disrespectful  conduct  and  violation  of  the  regulations  of  the  school. 
The  evidence  tended  to  show  that  some  of  the  scholars  had  a  prac- 
tice of  coughing  and  making  noises  resembling  coughing  for  the  pur- 
pose of  attracting  attention,  which  disturbed  the  order  and  quiet  of 
the  school.  The  defendant  requested  that  the  noises  be  stopped,  but 
the  disturbance  continued  to  some  extent.  At  the  time  of  the  assault 
the  defendant  was  repeating  the  request  to  the  school,  when  the 
plaintiff  made  a  noise  resembling  a  cough,  which  the  defendant  under- 
stood was  intended  by  the  plaintiff  as  an  act  of  contempt  and  defiance 
of  the  teacher's  authority,  and  thereupon  the  defendant  inflicted  the 
punishment  complained  of. 

The  plaintiff  offered  e\'idence  tending  to  show  that  a  portion  of  the 
scholars,  including  the  plaintiff,  were  affected  with  a  cough  known  as 
chin-cough  or  whooping-cough,  and  the  plaintiff  testified  that  the 
coughing  for  which  he  was  punished  was  involuntary,  and  not  intended 
as  an  act  of  disobedience  or  of  defiance.  The  plaintiff  requested  the 
following  instruction:  "If  the  jury  find  that  the  plaintiff  could  not 
help  coughing  by  reason  of  a  chin-cough,  then  the  defendant  was  not 
justified  in  punishing  the  plaintiff,  although  the  defendant  believed 
that  the  plaintiff  coughed  for  the  purpose  of  defying  his  authority  and 
disobeying  the  rules  of  the  school."  The  court  declined  to  give  this 
instruction,  and  the  plaintiff  excepted. 

Upon  this  point  the  court  charged  the  jury  that  if  the  defendant, 
acting  honestly  and  with  reasonable  caution  and  prudence,  believed 
that  the  act  of  the  plaintiff  was  intended  as  an  act  of  disrespect  for 
and  contempt  of  the  teacher's  authority,  and  if  he  had  reasonable 
cause  for  belie\ang  that  the  noise  made  by  the  plaintiff  was  inten- 
tional and  for  the  purpose  of  showing  his  defiance  of  the  reasonable 
requirements  of  the  defendant  in  the  government  of  the  school,  then 
the  defendant  was  justified  in  inflicting  moderate  and  reasonable 
punishment  upon  the  plaintiff. 

The  plaintiff  excepted  to  the  foregoing  instructions.  Verdict  for 
the  defendant. 

Smith,  J.  The  instructions  requested  made  the  defendant  liable, 
without  regard  to  the  fact  whether  he  exercised  reasonable  judgment 
and  discretion  in  determining  whether  the  plaintiff  was  guilty  of  in- 
tentional misconduct  as  a  scholar.  The  law  clothes  the  teacher,  as  it 
does  the  parent  in  whose  place  he  stands,  with  power  to  enforce  dis- 
cipline by  the  imposition  of  reasonable  corporal  punishment.  1  Blk. 
Com.  453;  2  Kent  Com.  205;  Reeve  Dom.  Rel.  288,  289,  375.  He  is 
not  required  to  be  infallil)le  in  his  judgment.  He  is  the  judge  to  de- 
termine when  and  to  what  extent  correction  is  necessary;  and  like  all 
others  clothed  with  a  discretion,  he  cannot  be  made  personally  respon- 
sible for  error  in  judgment  when  he  has  acted  in  good  faith  and  without 
malice.     Cooley  Const.  Lim.  341;  Cooley  Torts,  171,  172,  288;  Lander 


460  COMMONWEALTH   V.    MCAFEE.  [CHAP.  V. 

V.  Seaver,  32  Vt.  114;  State  v.  Pendergrass,  2  Dev.  &  Bat,  365;  Fitz- 
gerald V.  Northcote,  4  F.  &  F.  565;  Reeve  Doni.  Rel.  288. 

The  instructions  were  correct,  and  there  was  no  error  in  the  refusal 
to  give  those  requested.^ 

Exceptions  overruled. 

Clark,  J.,  did  not  sit:  the  others  concurred. 


COMMONWEALTH   v.  McAFEE. 
SuPREMK  Judicial  Court  of  Massachusetts.     1871. 

[Reported  108  Mass.  458.] 

Indictment  of  Hugh  McAfee,  charging  him  with  the  manslaughter 
of  Margaret  McAfee,  his  wife,  in  that  he,  "  the  said  Margaret  did 
feloniously  and  wilfully  strike,  kick,  beat,  bruise,  and  wound,  in  and 
upon  the  head  and  body  of  her,  the  said  Margaret,  and  her,  the  said 
Margaret,  did  throw  upon  the  floor,  therebj^  by  the  said  striking,  kick- 
ing, beating,  wounding,  and  throwing  upon  the  floor,  then  and  there 
giving  to  the  said  Margaret  divers  and  many  mortal  strokes,"  etc.,  of 
which  said  mortal  strokes,  etc.,  the  said  Margaret  then  and  there  died. 

It  appeared  at  the  trial  that  the  defendant's  wife  was  drunk ;  that  he 
struck  her  with  his  open  hand,  one  blow  on  the  cheek  and  one  upon  the 
temple  ;  and  that  she  fell  upon  the  floor  and  did  not  speak  afterward. 
Medical  witnesses  testified,  "  that  she  had,  bj'  falling  on  a  chair  most 
probably,  or  by  some  other  external  force,  been  affected  by  concussion- 
of  the  brain  and  efl"usion  of  blood  on  the  brain,  and  that  thus  her  death 
was  occasioned." 

The  defendant  requested  the  judge  to  instruct  the  jur}'  that  the  hus- 
band had  a  legal  right  to  administer  due  and  proper  correction  and 
corporal  chastisement  on  his  wife.^ 

The  jiidge  refused  so  to  instruct  the  jury,  and  gave  them  the  follow- 
ing instructions:  "Upon  any  view  of  the  facts  in  this  case,  which  the 
testimony,  taken  most  strongly  for  the  defendant,  will  allow,  there  was, 
as  matter  of  law,  no  justification  for  the  blows  given  ))}•  tlie  defendant 
to  the  deceased.  If  the  unlawful  blows  of  the  defendant  caused  death, 
either  directly,  or  by  causing  the  deceased  to  fall  upon  the  floor  by  the 
force  and  effect  thereof,  and  so  death  thereby  ensued,  then  the  defend- 
ant is  guilty  of  manslaughter."  The  jury  returned  a  verdict  of  guilty, 
and  the  defendant  alleged  exceptions. 

Chapman,  C.  J.  .  .  .  The  beating  of  llie  defendant's  wife  was  un- 
lawful.    In  Pearman  r.  Pearraan,  1  Swab.  «fe  Tristr.  60 1,  it  is  said  that 

1  See  also  Boyd  v.  State,  88  Ala.  169;  Donnelley  t.  Terr  (Ari.),  52  Pac.  368; 
Sheehan  v.  Sturges,  53  Conn.  481;  Hinkle  v.  State,  127  Ind.  490,  26  N.  E.  777; 
State  V.  Mizner,  45  la.  248;  State  t.  Long,  117  N.  C.  791,  23  S.  E.  431.  —  Ed. 

2  Only  so  much  of  the  case  as  discusses  this  request  is  given.  —  Ed. 


SECT.  II.]  THE    QUEEN    V.    JACKSOX.  461 

there  is  no  law  authorizing  a  man  to  beat  his  drunken  wife.  Beating  a 
wife  is  held  to  be  unlawful  in  New  York.  People  v.  Winters,  2 
Parker's  Crim.  Cas.  10;  Perry  /•.  Perry,  2  Paige,  501,  503.  There  is 
no  authority  in  its  favor  in  this  commonwealth.  Beating  or  striking  a 
wife  violentl3'  with  the  open  hand  is  not  one  of  the  rights  conferred  on 
a  husliand  by  the  marriage,  even  if  the  wife  be  drunk  or  insolent. 
The  lilows  being  illegal,  the  defendant  was  at  least  guilt\'  of  man- 
slaughter.    Commonwealth  v.  Fox,  7  Gray,  585. 

Exceptions  overruled. 
t 


THE  QUEEN  v.  JACKSON. 
Court  of  Appeal,  1891. 
[Reported  (1891)  1  Q.  B.  671.] 

Argument  on  the  return  to  a  writ  of  habeas  corpus,  commanding 
Edmund  Haughton  Jackson  to  bring  up  the  body  of  Emily  Emma 
Maude  Jackson,  his  wife,  taken  and  detained  in  his  custody. 

Lord  Esher,  M.  R.^  In  this  case  it  is  really  admitted  that  this  lady 
is  confined  b}'  the  husband  physically  so  as  to  take  away  her  liberty. 
The  only  question  for  us  to  determine  is  whether  in  this  case  we  can 
allow  that  to  continue.  The  husband  declares  his  intention  to  continue 
it.  He  justifies  such  detention;  and  the  proposition  laid  down  on  his 
behalf  is  that  a  husband  has  a  right  to  take  the  person  of  his  wife  by 
force  and  keep  her  in  confinement,  in  order  to  prevent  her  from  ab- 
senting herself  from  him  so  as  to  deprive  him  of  her  society.  A  series 
of  propositions  have  been  quoted  which,  if  true,  make  an  English  wife 
the  slave,  the  abject  slave,  of  her  husband.  One  proposition  that  has 
been  referred  to  is  that  a  husband  has  a  right  to  beat  his  wife.  I  do 
not  believe  this  ever  was  the  law.  ThenMt  was  said  that,  if  the  wife  was 
extravagant,  the  husband  might  confine  her,  though  he  could  not  im- 
prison her.  The  confinement  there  spoken  of  was  clearly  the  depriva- 
tion of  her  liberty  to  go  where  she  pleases.  The  counsel  for  the  husband 
was  obliged  to  admit  that,  if  she  was  kept  to  one  room,  that  would  be 
imprisonment;  but  he  argued  that,  if  she  was  only  kept  in  the  house, 
that  was  confinement  only.  That  is  a  refinement  too  great  for  my 
intellect.  I  should  say  that  confining  a  person  to  one  house  was  im- 
prisonment, just  as  much  as  confining  such  person  to  one  room.  I  do 
not  believe  that  this  contention  is  the  law  or  ever  was.  It  was  said 
that  by  the  law  of  England  the  husband  has  the  custody  of  his  wife. 
What  must  be  meant  by  "custody"  in  that  proposition  so  used  to  us? 
It  must  mean  the  same  sort  of  custody  as  a  gaoler  has  of  a  prisoner.    I 

'  The  return  to  the  ^vTits  and  the  concurring  opinions  of  Lord  Halsburt,  L.  C, 
and  Fry,  L.  J.,  are  omitted.  —  Ed. 


462  THE    QUEEN    V.  JACKSON.  [CHAP.  V. 

protest  that  there  is  no  such  law  in  England.  Cochrane's  Case,  8  Dowl. 
630,  was  cited  as  deciding  that  the  husV)and  has  a  right  to  the  custody, 
such  custody,  of  his  wife.  I  have  read  it  carefull}^  and  I  think  that  it 
does  so  decide.  The  judgment,  if  I  may  respectfully  say  so,  is  not  very 
exactly  worded,  and  uses  different  expressions  in  many  places  where  it 
means  the  same  thing;  but  that  seems  to  me  to  be  the  result  of  it.  It 
appears  to  me,  if  I  am  right  in  attributing  to  it  the  meaning  I  have  men- 
tioned, that  the  decision  in  that  case  was  wrong  as  to  the  law  enunciated 
in  it,  and  that  it  ought  to  be  overruled.  Sitting  here,  in  the  Court  of 
Appeal,  we  are  entitled  to  overrule  it.  I  do  not  believe  that  an  English 
husband  has  by  law  any  such  rights  over  his  wife's  person,  as  have 
been  suggested.  I  do  not  say  that  there  may  not  be  occasions  on  which 
he  would  have  a  right  of  restraint,  though  not  of  imprisonment.  For 
instance,  if  a  wife  were  about  immediately  to  do  something  which  would 
be  to  the  dishonour  of  her  husband,  as  if  the  husband  saw  his  wife  in 
the  act  of  going  to  meet  a  paramour,  I  think  that  he  might  seize  her 
and  pull  her  back.  That  is  not  the  right  that  is  contended  for  in  this 
case.  The  right  really  now  contended  for  is  that  he  may  imprison  his 
wife  by  way  of  punishment,  or  if  he  thinks  that  she  is  going  to  absent 
herself  from  him,  for  any  purpose,  however  innocent  of  moral  offense, 
he  may  imprison  her,  and  it  must  go  the  full  length  that  he  may  per- 
petually imprison  her.  I  do  not  think  that  this  is  the  law  of  England. 
But,  assuming  that  there  is  such  a  right,  the  question  arises  whether 
the  way  in  which  and  the  circumstances  under  which  it  has  been  exer- 
cised in  this  case  are  such  that  the  law  ought  to  give  back  to  the  hus- 
band the  custody  of  this  lady  against  her  will.  The  seizure  was  made 
on  a  Sunday  afternoon  when  she  was  coming  out  of  church,  in  the  face 
of  the  whole  congregation.  He  takes  with  him  to  assist  him  in  making 
the  seizure  a  young  lawyer's  clerk  and  another  man.  The  wife  is  taken 
by  the  shoulders  and  dragged  into  a  carriage,  and  falls  on  the  floor  of 
the  carriage  with  her  legs  hanging  out  of  the  door.  These  have  to  be 
lifted  in  by,  I  believe,  the  clerk.  Her  arm  is  bruised  in  the  struggle. 
She  is  then  driven  off  to  the  husband's  house,  the  lawyer's  clerk  riding 
in  the  carriage  with  them.  Could  anything  be  more  insulting?  The 
lawyer's  clerk  remains  at  the  house,  and  a  nurse  is  engaged  to  attend 
to  the  wife,  who  is  not  ill.  Ob\'iously  the  lawyer's  clerk  and  the  nurse 
are  to  help  to  keep  watch  over  her  and  control  her.  That  in  itself  is 
insulting.  She  goes  to  a  window  in  the  house,  and,  one  of  her  relations 
being  outside,  the  blind  is  immediately  pulled  down.  I  think  that  the 
circumstances  of  this  seizure  and  detention  were  those  of  extreme  in- 
sult, and  I  cannot  think  t/hat  it  can  be  that  under  such  circumstances 
as  these  the  husband  has  a  right  to  keep  his  wife  insultingly  imprisoned 
till  she  undertakes  to  consort  with  him.  In  m\'  opinion,  the  circum- 
stances are  such  that  the  court  ought  not  to  give  her  back  into  his 
custody.  He  has  obtained,  it  is  true,  a  decree  for  restitution  of  con- 
jugal rights;  but  that  gives  liim  no  power  to  take  the  law  into  his  own 


SECT.  II.]  TINKLE   V.   LUNIVANT.  463 

hands  and  himself  enforce  the  decree  of  the  court  by  imprisonment. 
Formerly  that  decree  might  have  been  enforced  by  attachment  for 
contempt;  but  that  would  have  been  an  imprisonment  by  the  court, 
not  by  the  husband.  The  power  of  attachment  in  such  cases  is  now 
taken  away.  The  suggestion,  therefore,  must  be  that,  though  the  court 
has  no  power  to  force  the  wife  to  restore  conjugal  rights  by  imprison- 
ment, the  husband  himself  has  a  right  to  take  her  by  force  and  imprison 
her  without  the  assistance  of  the  court.  I  think  that  the  passing  of 
the  Act  of  Parliament  which  took  away  the  power  of  attachment  in 
such  cases  is  the  strongest  possible  e\ndence  to  show  that  the  legislature 
had  no  idea  that  a  power  would  remain  in  the  husband  to  imprison 
the  wife  for  himself;  and  this  tends  to  show  that  it  is  not  and  never  was 
the  law  of  England  that  the  husband  has  such  a  right  of  seizing  and 
imprisoning  the  wife  as  contended  for  in  this  case.  If  there  is  now  a 
greater  difficulty  than  there  was  in  enforcing,  or  if  it  is  now  impossible 
effectively  to  enforce  a  decree  for  the  restitution  of  conjugal  rights,  the 
legislature  has  caused  this  by  Act  of  Parliament,  and  the  legislature 
must  deal  with  the  matter.  For  these  reasons  I  agree  that  the  return 
to  the  writ  is  bad,  and  that  the  husband  has  so  acted  that  we  ought 
not  to  give  back  the  custody  of  this  lady  to  him. 

Return  held  had,  and  wife  to  go  free. 


TINKLE  V.   DUNIVANT. 
Supreme  Court  of  Tennessee,  1886. 

[Reported  16  Lea,  503.] 

Freeman,  J.  This  is  a  suit  for  recovery  of  damages  for  an  alleged 
assault  and  battery  by  Tinkle  on  the  plaintiff.  The  jury  found  a 
verdict  in  favor  of  plaintiff  and  assessed  her  damages  at  $500,  from  the 
judgment  on  which  there  is  an  appeal  in  error  to  this  court. 

Several  errors  are  assigned,  which  we  proceed  to  dispose  of.  First, 
it  is  said,  the  damages  are  excessive.  While  they  are  probably  large 
for  the  actual  amount  of  injury,  we  cannot  say  they  are  so  large  as  to 
evidence  passion  or  prejudice  on  the  part  of  the  jury.  The  proof  on 
the  part  of  the  plaintiff,  which  is  evidently  credited  by  the  jury,  is 
substantially,  that  plaintiff,  a  girl  of  about  eighteen  years  of  age,  lived 
in  defendant's  house  as  a  "house  servant  of  all  work,"  kept  probably 
to  assist  Mrs.  Tinkle  in  her  general  household  duties.  It  seems  there 
was  an  infant  child  of  a  few  months  okl  in  the  family  which  required  to 
be  fed  by  means  of  milk  drawn  from  a  bottle,  the  mother  not  being  able 
to  give  it  nourishment  from  the  breast.  The  child  seems  to  have  been 
fretful  and  required  the  bottle  of  milk  during  the  night  of  the  trouble, 
when  Tinkle  went  into  the  room  adjoining  the  family  room  and  called 
plaintiff  to  get  up  and  come  into  the  other  room.  It  is  probable  she 
failed  to  do  so,  as  he  says,  after  being  called  more  than  once ;  she  claims 


464  THE  king's  prerogative  in  saltpetre.        [chap.  v. 

fliat  she  had  not  heard  the  calls.  The  child  continuing  to  cry,  defend- 
ant took  an  oil  lamp  in  his  left  hand,  went  into  the  room  where  plain- 
tiff was  in  bed  with  a  niece  of  his,  and  seized  her  by  the  arm,  pulled  her 
from  the  bed  on  the  floor,  and  as  he  admits,  "tapped"  her  on  her  side 
with  his  foot.  She  insists  he  kicked  her  with  considerable  severity, 
and  the  weight  of  the  evidence  tends  to  support  her  A'iew  of  the  facts. 
It  is  shown  that  the  act  was  of  such  a  character  that  the  niece  of  de- 
fendant raised  up  in  the  bed  and  said  to  him  to  stop.  The  plaintiff 
says  she  was  hurt  in  her  side  and  had  felt  pain  as  the  result  at  times  up 
to  the  trial.  She  was  also  somewhat  bruised  on  her  arm  by  the  pres- 
sure of  the  hand  in  pulling  her  out  of  bed;  she  was  in  her  night  dress, 
and  her  gown  is  shown  to  have  been  torn.  Wliile  there  has  been  no 
serious  permanent  damage,  we  cannot  say  the  jury  erred  in  believing 
the  plaintiff's  theory  of  the  case,  and  so  believing,  the  damage  cannot 
be  held,  as  we  have  said,  to  be  so  excessive  as  to  require  us  to  reverse 
for  this  cause.  .  .  .  His  Honor  was  requested  to  charge  the  jury, 
"that  if  plaintiff  was  a  minor  under  the  age  of  twenty-one  years,  and 
was  in  the  employ  of  defendant  as  a  servant,  he  would  have  the  right 
to  require  her  to  obey  his  reasonable  commands,  and  in  case  of  disobe- 
dience, to  use  moderate  force  to  compel  her  to  do  so."  To  this  he  re- 
plied, "  this  request  is  the  law,  but  defendant  would  not  have  the  right 
to  pull  lier  out  of  bed  and  kick  her."  In  this  he  erred  against  the  plain- 
tiff, so  far  as  the  first  part  of  the  proposition  goes.  A  master  has  no 
right  to  enforce  his  commands  upon  his  servant  or  employee  by  the 
use  of  force  or  personal  chastisement.  We  so  held  in  the  case  of  Cooper 
V.  The  State,  8  Bax.  325.  "A  master  has  the  right  to  use  moderate 
corporeal  correction  in  case  of  an  offending  apprentice."  Commond  v. 
Baird,  1  Ask.  Pa.  Rep.  2G7.  But  this  right  is  denied  as  respects  or- 
dinary hired  servants.  2  Kent's  Com.  261.  The  only  civil  remedies  a 
master  has  for  idleness,  disobedience,  or  other  dereliction  of  duty,  or 
breach  of  contract  on  the  part  of  a  servant,  are  either  to  bring  an  action 
against  him  or  discharge  him  from  service.  Wait's  Act.  and  Def.,  voL 
4,  page  600,  and  authorities  cited. ^ 


THE  KING'S  PREROGATIVE   IN  SALTPETRE. 
All  the  Judges  of  England. 

Reported  12  Co.  12. 

All  the  Justices,  viz.,  Popham,  Chief  Justice  of  England,  Coke,^ 
Chief  Justice  of  the  Common  Pleas,  Fleming,  Chief  Baron,  Fenner, 
Searl,  Yelverton,  Williams,  and  Tanfield,  JJ.,  were  assembled  at  Ser- 
jeants-Inn, to  consult  what  prerogative  the  King  had  in  digging  and 
taking  of  saltpetre  to  make  gunpowder  by  the  law  of  the  realm;  and, 
upon  conference  between  them,  these  points  were  resolved  by  them 

all,  una  voce. 

^  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT.  II.]  THE    king's    PREROGATIVE    IN    SALTPETRE.  465 

That  altliough  the  invention  of  gunpowder  was  devised  within  time 
of  memory,  viz.,  in  the  time  of  R.  2.,  yet  inasmuch  as  this  concerns  the 
necessary  defense  of  the  reahn,  he  shall  not  be  driven  to  buy  it  in 
foreign  parts;  and  foreign  princes  may  restrain  it  at  their  pleasure, 
in  their  own  dominions:  and  so  the  realm  shall  not  have  sufficient  for 
the  defense  of  it,  to  the  peril  and  hazard  of  it:  and  therefore  insomuch 
as  saltpetre  is  within  the  realm,  the  King  may  take  it  according  to  the 
limitations  following  for  tne  necessary  defense  of  the  kingdom. 

Although  the  King  cannot  take  the  trees  of  the  subject  growing  upon 
his  freehold  and  inheritance,  as  it  was  now  lately  resolved  by  us  the 
Justices  of  England:  and  although  he  cannot  take  gravel  in  the  in- 
heritance of  the  subject,  for  reparation  of  his  houses,  as  the  book  is 
in  11  H.  4.  28;  yet  it  was  resolved,  that  he  may  dig  for  saltpetre,  for 
this  that  the  ministers  of  the  King  who  dig  for  saltpetre  are  bound  to 
leave  the  inheritance  of  the  subject  in  so  good  plight  as  they  found  it, 
which  they  cannot  do  if  they  might  cut  the  timber  growing,  which 
would  tend  to  the  disinheritance  of  the  subject,  which  the  King  by 
prerogative  cannot  do;  for  the  King  (as  it  is  said  in  our  books)  cannot 
do  any  wrong. 

And  as  to  the  case  of  gravel,  for  reparation  of  the  houses  of  the 
King,  it  is  not  to  be  compared  to  this  case;  for  the  case  of  saltpetre 
extends  to  the  defense  of  the  whole  realm,  in  which  every  subject 
hath  benefit ;  but  so  it  is  not  in  the  case  of  the  reparation  of  the  King's 
houses:  and  therefore  it  is  agreed  in  13  H.  4.  and  other  books,  that  the 
King  may  charge  the  subject  for  murage  of  a  town,  to  which  the 
subjects  were  charged  in  the  time  of  insurrection  or  war,  for  safety: 
and  so  for  pontage,  for  this  that  he  wliich  is  charged  hath  benefit 
by  it.  But  the  King  cannot  charge  the  subject  for  the  making  of  a 
wall  about  his  own  house,  or  for  to  make  a  bridge  to  come  to  his  house; 
for  that  doth  not  extend  to  public  benefit : .  but  when  enemies  come 
against  the  realm  to  the  sea-coast,  it  is  lawful  to  come  upon  my  land 
adjoining  to  the  same  coast,  to  make  trenches  or  bulwarks  for  the 
defense  of  the  realm,  for  every  subject  hath  benefit  by  it.  And  there- 
fore by  the  common  law,  every  man  may  come  upon  my  land  for 
the  defense  of  the  realm,  as  appears  9  Ed.  4.  23.  And  in  such  case  on 
such  extremity  they  may  dig  for  gravel,  for  the  making  of  bulwarks; 
for  this  is  for  the  public,  and  every  one  hath  benefit  by  it;  but  after 
the  danger  is  over,  the  trenches  and  bulwarks  ought  to  be  removed, 
so  that  the  owner  shall  not  have  prejudice  in  his  inlieritance :  and  for 
the  commonwealth,  a  man  shall  suffer  damage;  as,  for  saving  of  a  city 
or  town,  a  house  shall  be  plucked  down  if  the  next  be  on  fire:  and  the 
suburbs  of  a  city  in  time  of  war  for  the  common  safety  shall  be  plucked 
down;  and  a  thing  for  the  commonwealth  every  man  may  do  without 
being  liable  to  an  action,  as  it  is  said  in  3  H.  8  fol.  15.  And  in  this  case 
the  rule  is  true,  Princeps  ct  respublica  ex  justa  causa  possunt  rem  meam 
auferre} 

1  See  also  Y.  B.  i)  Ed.  4,  2.3,  pi.  41,  Ames  Cas.  Torts  (.3d  ed.)  177.  —  Ed. 


466  STATE    V.    WRAY.  [CHAP.  V. 


STATE   V.  WRAY. 

Supreme  Coukt  of  North  Carolina.     1875. 

[Reported  72  Xort/i  Carolina,  253.] 

Settle,  J.  The  defendants  being  indicted  for  retailing  spirituous' 
liquors  without  a  license  so  to  do,  the  jury  rendered  the  following 
special  verdict:  '■'The  defendants  were  druggists  and  partners  in  the 
town  of  Shelby,  and  kept  medicines  for  sale,  but  had  no  license  to 
retail  spirituous  liquors.  In  the  month  of  July,  1872,  Dr.  O.  P.  Gardner, 
a  practising  physician  in  the  town  of  Shelby,  prescribed  the  use  of  a 
half-pint  of  French  brandy  for  Mrs.  Durham,  the  wife  of  the  witness, 
Hill  Durham,  and  directed  the  witness  to  go  to  the  defendants  for  it. 
That  Dr.  Gardner  also  went  to  tlie  defendants  and  directed  them  to 
let  the  witness  have  the  said  brand}'  for  his  wife  as  medicine.  The 
witness  then  went  to  the  defendants  and  purchased  the  half-pint  of 
French  brandy,  and  his  wife  used  it  as  medicine.  That  French  brandy 
is  a  spirituous  liquor ;  that  it  is  also  an  essential  ..ledicine,  frequently 
prescribed  by  physicians,  and  often  used,  and  that  in  this  case  it  was 
bought  in  good  faith  as  a  medicine,  and  was  used  as  such." 

The  letter  of  the  law  has  been  broken,  but  has  the  spirit  of  the  law 
been  violated?  The  question  here  presented  has  been  much  discussed, 
but  it  has  not  received  the  same  judicial  determination  in  all  the  States 
in  which  it  has  arisen.  In  this  conflict  of  authority  we  shall  remember 
that  the  reason  of  the  law  is  the  life  of  the  law,  and  when  one  stops 
the  other  should  also  stop. 

What  was  the  evil  sought  to  be  remedied  by  our  statute?  Evidently 
the  abusive  use  of  spirituous  liquors,  keeping  in  view  at  the  same  time 
the  revenues  of  the  State.  The  special  verdict  is  very  minute  in  its 
details,  and  makes  as  strong  a  case  for  the  defendants  as  perhaps  will 
ever  find  its  way  into  court  again.  A  physician  prescribes  the  brandy 
as  a  medicine  for  a  sick  lady,  and  directs  her  husband  to  get  it  from 
the  defendants,  who  are  druggists.  It  may  be  that  a  pure  article  of 
brandy,  such  as  the  physician  was  willing  to  administer  as  a  medicine, 
was  not  to  be  obtained  elsewhere  than  at  the  defendants'  drugstore. 
The  doctor  himself  goes  to  the  defendants  and  directs  them  to  let  the 
witness  have  the  brandy  as  a  medicine  for  his  wife.  And  the  further 
fact  is  found,  which  perhaps  might  have  been  assumed  without  the  find- 
ing, that  French  brandy  is  an  essential  medicine,  frequently  prescribed 
by  physicians  and  often  used  ;  and  the  farther  and  very  important  fact 
is  established,  that  in  this  case  it  was  bought  in  good  faith  as  a  medi- 
cine, and  was  used  as  such.  After  tliis  verdict  we  cannot  doubt  that 
the  defendants  acted  in  good  faith  and  with  due  caution,  in  the  sale 
which  is  alleged  to  be  a  violation  of  law. 

In  favor  of  defendants,  criminal  statutes  are  both  contracted  and 


SECT.  II.]  PEOPLE    V.    TAYLOR.  467 

expanded.  1  Bishop,  par.  261.  Now  unless  this  sale  comes  within 
the  mischief  which  the  statute  was  intended  to  suppress,  the  defend- 
ants are  qot  guilty  ;  for  it  is  a  principle  of  the  common  law  that  no 
one  shall  suffer  criminally  ^or  an  act  in  which  his  mind  does  not  con- 
cur. The  familiar  instance  given  by  Blackstone  illustrates  our  case 
better  than  1  can  do  by  argument.  The  Bolognian  law  enacted  "that 
whosoever  drew  blood  in  the  street,  should  be  punished  with  the  utmost 
severity.""  A  person  fell  down  in  the  street  with  a  fit,  and  a  surgeon 
opened  a  vein  and  drew  blood  in  tlie  street.  Here  was  a  clear  viola- 
tion of  the  letter  of  the  law,  and  yet  from  that  day  to  this,  it  has  never 
been  considered  a  violation  of  the  spirit  of  the  law.  Perhaps  it  will 
give  us  a  clearer  view  of  the  case  if  we  put  the  druggist  out  of  the 
question,  and  suppose  that  the  physician  himself,  in  the  exercise  of 
his  professional  skill  and  judgment,  had  furnished  the  liquor  in  good 
faith  as  a  medicine.  Can  it  be  pretended  that  he  would  be  any  more 
guilty  of  a  violation  of  our  statute,  than  the  surgeon  was  guilty  of  a 
violation  of  the  Bolognian  law?    We  think  not. 

But  we  would  not  have  it  understood  that  physicians  and  druggists 
are  to  be  protected  in  an  abuse  of  the  privilege.  They  are  not  only 
prohibited  from  selling  liquor  in  the  ordinary  course  of  business,  but 
also  from  administering  it  as  a  medicine  unless  it  be  done  in  good 
faith,  and  after  the  exercise  of  due  caution  as  to  its  necessity  as  a 
medicine.  The  sale  of  liquor  without  a  license,  in  quantities  less  than 
a  quart,  is  prima  facie  unlawful,  and  it  is  incumbent  upon  one  who 
does  so  sell  to  show  that  it  was  done  under  circumstances  which  ren- 
der it  lawful.  In  this  case  we  think  such  circumstances  have  been 
shown,  and  we  concur  in  the  judgment  of  his  honor,  that  the  defend- 
ants are  not  guilty. 

Per  Curiam.  Judgment  affirmed. 


PEOPLE   V.   TAYLOR. 
Supreme  Court  of  Michigan,  1896. 

[Reported  110  Mich.  491.] 

Montgomery,  J.  The  respondent  was  convicted  of  keeping  a  saloon 
open  on  Sunday.^  .  .  .  The  defendant  offered  testimony  that  on  the 
Sunday  in  question  he  and  his  father-in-law  were  walking  along  the 
street,  and  came  to  nearly  in  front  of  his  saloon,  when  they  met  four 
men;  that  defendant's  father-in-law  was  taken  suddenly  ill,  and  it 
was  suggested  that  he  be  taken  home  in  a  carriage,  but  he  replied  that 
he  must  have  a  doctor  right  away;  that  defendant  then  opened  his 
saloon,  admitted  his  father-in-law  and  the  four  other  men,  and  tele- 

*  Part  of  the  opinion  only  is  given.  —  Ed. 


468  GLEVER   V.    HYNDE.  [CHAP.  A". 

phoned  for  a  doctor.  The  defendant's  own  testimony  shows  that  he 
was  unable  to  state  whether  there  w'ere  other  persons  admitted  into 
the  saloon.  ... 

We  think  this  testimony  fails  to  show  any  overruling  necessity  for 
opening  up  the  saloon  and  admitting  people  indiscriminately.  If  it 
was  necessary  to  take  his  father  to  a  place  for  treatment,  there  was  a 
drug  store  within  a  few  feet  of  the  place,  lawfully  open.  Or,  even  if 
it  might  be  said  that  it  was  proper  to  open  the  saloon  for  this  purpose, 
it  was  not  necessary  to  let  in  a  battalion  of  customers  at  the  same  time. 
The  facts  were  not  disputed  except  as  to  the  number  of  people  admitted. 
No  error  was  committed  to  the  prejudice  of  respondent,  and  the  con- 
viction will  be  affirmed. 


GLEVER  V.   HYNDE. 
Common  Bench,  1674. 

[Reported  1  Mod.  168.] 

Glever  brought  an  action  of  trespass,  of  assault  and  battery, 
against  Elizabeth  Hynde  and  six  others.  For  that  they  at  York-Castle, 
in  the  county  of  York,  him,  the  said  plaintiff,  with  force  and  arms  did 
assault,  beat,  and  evil-entreat,  to  his  damage  of  one  hundred  pounds. 

The  defendants  plead  to  the  vi  ct  armis,  not  guilty;  to  the  assault, 
beating,  and  evil-entreating,  they  say,  that  at  such  a  place,  in  the  county 
of  Lancaster,  one  Jackson,  a  curate,  was  performing  the  rites  and 
funeral  obsequies,  according  to  the  usage  of  the  church  of  England,  over 

the  body  of ,  there  lying  dead,  and  ready  to  be  buried;  and  that  then 

and  there  the  plaintiff  did  maliciously  disturb  him;  that  they,  the 
defendants,  required  liim  to  desist;  and  because  he  would  not,  that  they 
to  remdve  him,  and  for  the  preventing  of  further  disturbance,  molliter 
ei  manus  imposucrunt,  &c.  quce  est  eadem  transgressio;  absque  hoc  that 
they  were  guilty  of  any  assault,  etc.  within  the  county  of  York,  or 
any  where  else  extra  comitatum  Lancastriw.  —  The  plaintiff  demurs. 

The  Court.  The  statute  of  1.  Phihp  &  Mary  concerns  preachers 
only:  but  there  is  another  act,  made  1.  Eliz.  c.  2.  s.  9.  that  extends  to 
all  men  in  orders  that  perform  any  part  of  the  public  service.  But 
tieither  of  these  statutes  take  away  the  conunon  law.  And  at  the  com- 
mon law,  any  person  there  present  might  have  ^  removed  the  plaintiff'; 
for  they  were  all  concerned  in  the  service  of  God  that  was  then  perform- 
ing; so  that  the  plaintiff  in  disturbing  it,  was  a  nuisance  to  them  all; 
and  might  be  removed  by  the  same  rule  of  law  that  allows  a  man  to 
abate  a  nuisance. — Whereupon  judgment  was  given  for  the  defendant, 
nisi  causa,  &c.~ 

1  See  6.  Edw.  6,  c.  4.  the  1.  Mary,  c.  3.  and  the  1.  Will.  &  Mary,  c.  18.  s.  19. 
^  See  also  Cooper  v.  McKenna,  124  Mass.  284.  —  Ed. 


"A 


SECT.  II.]  PUTNAM    V.    PAYNE.  469 

PUTNAM  V.  PAYNE. 
Supreme  Court,  New  York,  1816. 

[Reported  13  Johns.  312.] 

In  error,  on  certiorari  to  a  justice's  court. 

The  defendant  in  error  brought  an  action,  in  the  court  below,  against 
the  plaintiff  in  error,  for  killing  his  dog.  It  was  proved,  at  the  trial, 
that  the  dog  was  very  \acious,  and  frequently  attacked  persons  pass- 
ing in  the  street,  in  Lansingburgh,  where  the  parties  resided.  The 
plaintiff  below  had  frequently  been  notified  of  the  ferocious  acts  of  his 
dog,  and  had  been  requested  by  the  neighbors  to  kill  or  confine  him. 
The  dog  in  question  had  been  bitten,  a  few  days  before  he  was  killed, 
by  a  mad  dog.  There  being  a  very  great  alarm  in  the  village  of  Lan- 
singburgh, on  account  of  mad  dogs,  the  inhal)itants  petitioned  the 
trustees  to  pass  by-laws  for  restraining  dogs,  and  killing  those  that 
should  be  found  at  lar^e;  and  the  trustees  accordingly  passed  a  law, 
declaring  it  lawful  for  any  person  to  kill  any  dog  which  should  be  found 
at  large  in  the  village.  It  was  also  proved  that  the  plaintiff  below 
called  upon  the  defendant,  and  informed  him,  that  a  certain  other  dog 
in  the  \'illage  was  mad,  and  requested  him  to  go  and  shoot  it;  that  the 
defendant  accordingly  took  his  gun  for  that  purpose,  and  in  passing 
through  the  A'illage  met  the  plaintiff's  dog  running  loose,  and  shot  him 
dead.    Judgment  was  given  for  the  plaintiff  below. 

Per  Curiam.  It  is  unnecessary,  in  this  case,  to  decide  whether  the 
act  complained  of  could  be  justified  under  the  by-law  of  the  corpora- 
tion. 

The  defendant  was  fully  justified  in  killing  the  dog,  under  the  cir- 
cumstances of  the  case,  upon  common  law  principles.  The  dog  was, 
generally,  a  dangerous  and  unruly  animal,  and  his  owner  knew  it;  yet 
he  permitted  him  to  run  at  larg* ,  or  kept  him  so  negligently,  that  he 
escaped  from  his  confinement.  Such  negligence  was  wanton  and  cruel, 
and  fully  justified  the  defendant  in  killing  the  dog  as  a  nuisance.  The 
public  safety  demands  this  rule.  It  is  little  better  than  mockery  to 
say  that  a  person  injured  by  such  an  animal  might  sue  for  damages, 
or  for  penalties. 

But,  in  addition  to  this,  the  dog  had  lately  been  bitten  by  a  mad  dog; 
this,  in  itself,  was  sufficient  to  justify  any  person  in  killing  him,  if 
found  running  at  large.  We  do  not  mean  to  say  that  this  would  be 
allowed  as  a  justification  in  killing  more  useful,  and  less  dangerous, 
animals,  as  hogs,  etc. 

Judgment  reversed. 


470  SUROCCO  V.    GEARY.  [CHAP.  V. 


SUROCCO  V.   GEARY. 
Supreme  Court  of  California,  1853. 

[Reported  3  Cal.  69.] 

Murray,  C.  J.,  delivered  the  opinion  of  the  court.  Heydenfeldt,  J., 
concurred. 

This  was  an  action,  commenced  in  the  court  below,  to  recover  dam- 
ages for  blowing  up  and  destroying  the  plaintiffs'  house  and  property, 
during  the  fire  of  the  24th  of  December,  1849. 

Geary,  at  that  time  Alcade  of  San  Francisco,  justified,  on  the  ground 
that  he  had  authority,  by  virtue  of  his  office,  to  destroy  said  building, 
and  also  that  it  had  been  blown  up  by  him  to  stop  the  progress  of  the 
conflagration  then  raging. 

It  was  in  proof,  that  the  fire  passed  over  and  birned  beyond  the 
building  of  the  plaintiffs',  and  that,  at  the  time  said  building  was 
destroyed,  they  were  engaged  in  removing  their  property,  and  could, 
had  they  not  been  prevented,  have  succeeded  in  removing  more,  if 
not  all  of  their  goods. 

The  cause  was  tried  by  the  court  sitting  as  a  jury,  and  a  verdict 
rendered  for  the  plaintiff's,  from  which  the  defendant  prosecutes  this 
appeal  under  the  Practice  Act  of  1850. 

The  only  question  for  our  consideration  is,  whether  the  person  who 
tears  down  or  destroys  the  house  of  another,  in  good  faith,  and  under 
apparent  necessity,  during  the  time  of  a  conflagration,  for  the  purpose 
of  saving  the  buildings  adjacent,  and  stopping  its  progress,  can  be  held 
personally  liable  in  an  action  by  the  owner  of  the  property  destroyed. 
This  point  has  been  so  well  settled  in  the  courts  of  New  York  and 
New  Jersey,  that  a  reference  to  those  authorities  is  all  that  is  necessary 
to  determine  the  present  case. 

The  right  to  destroy  property,  to  prevent  the  spread  of  a  conflagra- 
tion, has  been  traced  to  the  highest  law  of  necessity,  and  the  natural 
rights  of  man,  independent  of  society  or  civil  government.  "  It  is 
referred  by  moralists  and  jurists  to  the  same  great  principle  which 
justifies  the  exclusive  appropriation  of  a  plank  in  a  shipwreck,  though 
the  life  of  another  be  sacrificed ;  with  the  throwing  overboard  goods  in 
a  tempest,  for  the  safety  of  a  vessel ;  with  the  trespassing  upon  the  lands 
of  another,  to  escape  death  by  an  enemy.  It  rests  upon  the  maxim, 
Neccssitas  inducit  privilegium,  quod  jura  privata." 

The  coimnon  law  adopts  the  principles  of  the  natural  law,  and  places 
the  justification  of  an  act  otherwise  tortious  precisely  on  the  same 
ground  of  necessity.  (See  1st  Zabriskie,  American  Print  Works  v. 
Lawrence,  and  the  cases  there  cited.) 

This  principle  has  been  familiarly  recognized  by  the  books  from  the 


SECT.  II.]  SUROCCO   V.    GEARY.  471 

time  of  the  saltpetre  case,  and  the  instances  of  tearing  down  houses  to 
prevent  a  conflagration,  or  to  raise  bulwarks  for  the  defense  of  a  city, 
are  made  use  of  as  illustrations,  rather  than  as  abstract  cases,  in  which 
its  exercise  is  permitted.  At  such  times,  the  individual  rights  of  prop- 
erty give  way  to  the  higher  laws  of  impending  necessity. 

A  house  on  fire,  or  those  in  its  immediate  vicinity,  which  serve  to 
communicate  the  flames,  becomes  a  nuisance,  which  it  is  lawful  to 
abate,  and  the  private  rights  of  the  individual  yield  to  the  considera- 
tions of  general  convenience,  and  the  interests  of  society.  Were  it 
otherwise,  one  stubborn  person  might  involve  a  whole  city  in  ruin,  by 
refusing  to  allow  the  destruction  of  a  building  which  would  cut  off  the 
flames  and  check  the  progress  of  the  fire,  and  that,  too,  when  it  was 
perfectly  evident  that  his  building  must  be  consumed. 

The  respondent  has  invoked  the  aid  of  the  constitutional  provision 
which  prohibits  the  taking  of  private  property  for  public  use,  without 
just  compensation  being  made  therefor.  This  is  not  "a  taking  of 
private  property  for  public  use,"  within  the  meaning  of  the  Constitu- 
tion. 

The  right  of  taking  individual  property  for  public  purposes  belongs 
to  the  State,  by  virtue  of  her  right  of  eminent  domain,  and  is  said  to 
be  justified  on  the  ground  of  state  necessity ;  but  this  is  not  a  taking  or 
a  destruction  for  a  public  purpose,  but  a  destruction  for  the  benefit 
of  the  indi\'idual  or  the  city,  but  not  properly  of  the  State. 

The  counsel  for  the  respondent  has  asked,  who  is  to  judge  of  the 
necessity  of  the  destruction  of  property? 

This  must,  in  some  instances,  be  a  difficult  matter  to  determine. 
The  necessity  of  blowing  up  a  house  may  not  exist,  or  be  as  apparent 
to  the  owner,  whose  judgment  is  clouded  by  interest,  and  the  hope  of 
sa\ang  his  property,  as  to  others.  In  all  such  cases  the  conduct  of  the 
individual  must  be  regulated  by  his  own  judgment  as  to  the  exigencies 
of  the  case.  If  a  building  should  be  torn  down  without  apparent  or 
actual  necessity,  the  parties  concerned  would  undoubtedly  be  liable  in 
an  action  of  trespass.  But  in  every  case  the  necessity  must  be  clearly 
shown.  It  is  true,  many  cases  of  hardship  may  grow  out  of  this  rule, 
and  property  may  often  in  such  cases  be  destroyed,  without  necessity, 
by  irresponsible  persons,  but  this  difficulty  would  not  be  obviated  by 
making  the  parties  responsible  in  every  case,  whether  the  necessity 
existed  or  not. 

The  legislature  of  the  State  possess  the  power  to  regulate  this  sub- 
ject by  providing  the  manner  in  which  buildings  may  be  destroyed, 
and  the  mode  in  which  compensation  shall  be  made;  and  it  is  to  be 
hoped  that  something  will  be  done  to  obviate  the  difficulty,  and  pre- 
vent the  happening  of  such  events  as  those  supposed  by  the  re- 
spondent's counsel. 

In  the  absence  of  any  legislation  on  the  subject,  we  are  compelled  to 
fall  back  upon  the  rules  of  the  common  law. 


472  PROCTOE    V.    ADAMS.  [CHAP.  V. 

The  evidence  in  this  case  clearly  establishes  the  fact,  that  the  blow- 
ing up  of  the  house  was  necessary,  as  it  would  have  been  consumed 
had  it  been  left  standing.  The  plaintiffs  cannot  recover  for  the  value 
of  the  goods  which  they  might  have  saved;  they  were  as  much  sub- 
ject to  the  necessities  of  the  occasion  as  the  house  in  which  they  were 
situate;  and  if  in  such  cases  a  party  was  held  liable,  it  would  too  fre- 
quently happen,  that  the  delay  caused  by  the  removal  of  the  goods 
would  render  the  destruction  of  the  house  useless. 

The  court  below  clearly  erred  as  to  the  law  applicable  to  the  facts 
of  this  case.  The  testimony  will  not  warrant  a  verdict  against  the 
defendant.^ 

Judgment  reversed. 


PROCTOR  V.   ADAMS. 
Supreme  Judicial  Court  of  Massachusetts,  1873. 

[Reported  113  Mass.  376.] 

Tort,  in  the  nature  of  trespass  quare  clausum,  for  entering  the  plain- 
tiff's close  and  carrying  away  a  boat.  \ 

At  the  trial  in  the  Superior  Court,  before  Brighani,  C.  J.,  it  appeared 
that  the  premises  described  in  the  declaration  were  a  sandy  beach 
on  the  sea  side  of  Plum  Island,  and  that  the  defendants  went  there, 
between  high  and  low  water  mark,  January  19,  1873,  and  against  the 
objection  and  remonstrances  of  the  plaintiff's  tenant,  carried  away  a 
boat  worth  $50,  which  they  found  lying  there. 

The  defendants  offered  e\idence  that  upon  the  night  of  January 
18,  1873,  there  was  a  severe  storm;  that  the  next  morning  they  went 
upon  the  beach  to  see  if  any  vessels  or  property  had  been  cast  ashore; 
that  they  found  a  boat  lying  upon  the  beach  about  twenty-five  feet 
below  high  water  mark,  which  had  apparently  been  driven  ashore  in 
the  storm ;  that  in  order  to  save  it,  they  endeavored  to  haul  it  upon  the 
beach,  and  succeeded  in  putting  it  near  the  line  of  high  water  mark; 
that,  not  thinking  it  secure,  they,  the  next  day,  pushed  it  into  the  water, 
and  carried  it  around  into  Plum  Island  River,  on  the  inside  of  the  island ; 
that  they  at  once  advertised  it  in  the  Ipswich  and  Newburyport  papers ; 
that  they  shortly  afterwards  delivered  it  to  one  Jackman,  who  claimed 
it  as  agent  for  the  underwriters  of  the  wrecked  steamer  Sir  Francis, 
and  who  paid  them  twelve  dollars  for  their  ser\'ices  and  expenses. 

The  court  ruled  that  these  facts,  if  proved,  would  not  constitute  a 
defense,  and  proposed  to  instruct  the  jury  as  follows: 

"  I^  the  land  upon  which  the  boat  was  found  and  taken  possession  of 

1  See  also  Dewey  v.  White.  M.  &  M.  -56;  Drake  v.  Shorter.  4  Esp.  165.  —  Ed. 


SECT.  II.]  PROCTOR   V.    ADAMS.  473 

by  the  defendants  was  in  the  possession  or  occupation  of  the  plaintiff, 
the  defendants'  entry  upon  it  without  permission  of  the  plaintiff  was  an 
unlawful  entry. 

"  If  the  defendants,  having  made  an  unlawful  entry  upon  the  plain- 
tiff's land,  there  took  and  therefrom  carried  a  boat,  for  any  purpose 
affecting  the  boat  as  derelict  or  wrecked  property,  they  are  liable  to 
the  plaintiff  for  their  unlawful  entry  upon  the  land  in  nominal  damage, 
and  also,  the  boat  not  being  their  property,  but  a  wreck,  in  damages 
for  the  unlawful  taking  and  carrying  away  of  the  boat,  to  the  value  of 
the  boat." 

The  defendants  requested  the  court  to  rule  that,  upon  the  case  pre- 
sented, the  'law  would  imply  a  license,  but  the  court  declined  so  to 
rule.  The  defendants  then  declined  to  go  to  the  jury,  and  the  court 
instructed  the  jury  to  return  a  verdict  for  the  plaintiff  for  $51,  and  re- 
ported the  case  to  this  court. 

Gray,  C.  J.  The  boat,  having  been  cast  ashore  by  the  sea,  was  a 
wreck,  in  the  strictest  legal  sense.  3.  Bl.  Com.,  106.  Chase  v.  Corcoran, 
106  Mass.  286,  288.  Neither  the  finders  of  the  boat,  nor  the  owner  of 
the  beach,  nor  the  Commonwealth,  had  any  title  to  the  boat  as  against 
its  former  owner.  Body  of  Liberties,  art.  90.  Anc.  Chart.,  211. 
2  Mass.  Col.  Rec,  143.  St.  1814,  c.  170.  Rev.  Sts.  c.  57.  Gen.  Sts. 
c.  81.  3  Dane  Ab.,  134,  136,  138,  144.  2  Kent  Com.,  322,  359.  But 
the  owner  of  the  land  on  which  the  boat  was  cast  was  under  no  duty 
to  save  it  for  him.    Sutton  i'.  Buck,  2  Taunt.,  302,  312. 

If  the  boat,  being  upon  land  between  high  and  low  water  mark, 
owned  or  occupied  by  the  plaintiff,  was  taken  by  the  defendants, 
claiming  it  as  their  own,  when  it  was  not,  the  plaintiff  had  a  sufficient 
right  of  possession  to  maintain  an  action  against  them.  Barker  v. 
Bates,  13  Pick.  255.  Dunwich  v.  Sterry,  1  B.  &  Ad.  831.  But  if, 
as  the  e\'idence  offered  by  them  tended  to  show,  the  boat  was  in  danger 
of  being  carried  off  by  the  sea,  and  they,  before  the  plaintiff  had  taken 
possession  of  it,  removed  it  for  the  purpose  of  saving  it  and  restoring 
it  to  its  lawful  owner,  they  were  not  trespassers.  In  such  a  case,  though 
they  had  no  permission  from  the  plaintiff  or  any  other  person,  they 
had  an  implied  license  by  law  to  enter  on  the  beach  to  save  the  prop- 
erty. It  is  a  very  ancient  rule  of  the  common  law,  that  an  entry  upon 
land  to  savje  goods  which  are  in  jeopardy  of  being  lost  or  destroyed  by 
water,  fire,  or  any  like  danger,  is  not  a  trespass.  21  H.  VII,  27,  28, 
pi.  5.  Bro.  Ab.  Trespass,  213.  Vin.  Ab.  Trespass,  (H.  a.  4)  pi.  24  ad 
fin.;  (K.  a.)  pi.  3.  In  Dunwich  v.  Sterry,  1  B.  &  Ad.  831,  a  case  very 
like  this,  Mr.  Justice  Parke  (afterwards  Baron  Parke  and  Lord  Wens- 
leydale)  left  it  to  the  jury  to  say  whether  the  defendant  took  the  prop- 
erty for  the  benefit  of  the  owners,  or  under  a  claim  of  his  own  and  to 
put  the  plaintiffs  to  proof  of  their  title.  In  Barker  v.  Bates,  13  Pick. 
255,  upon  which  the  plaintiff  mainly  relies,  the  only  right  claimed  by 
the  defendants  was  as  finders  of  the  property  and  for  their  own  benefit. 


474  SEAVEY    V.    PREBLE.  [CHAP.  V. 

The  defendants  are  therefore  entitled  to  a  new  trial.  As  the  answer 
was  not  objected  to,  and  the  declaration  may  be  amended  in  the 
court  below,  we  have  not  considered  the  form  of  the  pleadings. 

New  trial  ordered. 


SEAVEY  V.   PREBLE. 
Supreme  Judicial  Court  of  Maine,  1874. 

[Reported  64  Me.  120.] 

Walton,  J.  We  perceive  no  objection  to  the  form  of  the  action  in 
this  case.  It  is  well  settled  that  trespass  quare  clausum  frcgit  may  be 
maintained  by  the  owner  of  real  estate  for  an  injury  to  the  freehold, 
notwithstanding  it  was  in  the  possession  of  a  tenant  at  will  at  the  time 
of  the  alleged  injury.     Davis  v.  Nash,  32  Maine,  411. 

But  we  think  the  verdict  is  clearly  against  e\ddence. 

When  the  small-pox  or  any  other  contagious  disease  exists  in  any 
town  or  city  the  law  demands  the  utmost  vigilance  to  prevent  its 
spread.  "All  possible  care"  are  the  words  of  the  statute.  R.  S.  c. 
14,  §  30. 

To  accomplish  this  object  persons  may  be  seized  and  restrained  of 
their  libert}'  or  ordered  to  leave  the  State;  private  houses  may  be  con- 
verted into  hospitals  and  made  subject  to  hospital  regulations;  build- 
ings may  be  broken  open  and  infected  articles  seized  and  destroyed, 
and  many  other  things  done  which  under  ordinary  circumstances  would 
be  considered  a  gross  outrage  upon  the  rights  of  persons  and  property. 
This  is  allowed  upon  the  same  principle  that  houses  are  allowed  to  be 
torn  down  to  stop  a  conflagration.  Sal  us  populi  snprema  lex  —  the 
safety  of  the  peof)le  is  the  supreme  law  —  is  the  governing  principle 
in  such  cases. 

Where  the  public  health  and  human  life  are  concerned  the  law  re- 
quires the  highest  degree  of  care.     It  will  not  allow  of  experiments  to  .-^ 
see  if  a  less  degree  of  care  will  not  answer.    The  keeper  of  a  furious  dog 
or  a  mad  bull  is  not  allowed  to  let  them  go  at  large  to  see  whether  they  J 
will  bite  or  gore  the  neighbor's  children.     Nor  is  the  dealer  in  nitro-                  0 
glycerine  allowed  in  the  presence  of  his  customers  to  see  how  hard  a                  "9, 
kick  a  can  of  it  will  bear  without  exploding.    Nor  is  the  dealer  in  gun- 
powder allowed  to  see  how  near  his  magazine  may  be  located  to  a  black-  •' 
smith's  forge  without  being  blown  up.    Nor  is  one  using  a  steam  engine 
to  see  how  much  steam  he  can  possibly  put  on  without  bursting  the                   '; 
boiler.     No  more  are  those  in  charge  of  small-pox  patients  allowed  to  | 
experiment  to  see  how  little  cleansing  will  answer;  how  much  paper  spit                   .; 
upon  and  bedaubed  with  small-pox  xarus  it  will  do  to  leave  upon  the 
walls  of  the  rooms  where  the  patients  have  been  confined.     The  law 


SECT^   II.]  SEAVEY   V.   PREBLE.  475 

will  not  tolerate  such  experiments.  It  demands  the  exercise  of  all 
possible  care.  In  all  cases  of  doubt  the  safest  course  should  be  pursued, 
remembering  that  it  is  infinitely  better  to  do  too  much  than  run  the 
risk  of  doing  too  little. 

Unfortunately  medical  science  has  not  yet  arrived  at  that  degree  of 
perfection  which  will  enable  its  practitioners  to  agree.  There  is  scarcely 
a  case  tried  where  medical  testimony  is  used,  in  which  the  doctors  do 
not  disagree.  The  swearing  is  sometimes  so  bitterly  antagonistic  as 
to  make  it  painful  to  listen  to  it. 

There  is  the  usual  conflict  of  medical  testimony  in  this  case.  The 
defendant  and  other  physicians  called  by  him  as  witnesses  express 
the  opinion  that  it  is  necessary  in  order  to  cleanse  a  room  in  which 
small-pox  patients  have  been  confined  to  remove  the  paper  from  the 
walls.  The  plaintiff  (himself  a  physician)  and  the  other  physicians 
called  by  him  as  witnesses  express  the  opinion  that  it  is  not  necessary. 
Several  of  them  however  admit  that  if  the  paper  is  loose,  or  the  small- 
pox \irus  has  actually  come  in  contact  with  it,  it  should  be  removed. 

Mrs.  Liscomb,  the  nurse  employed  by  the  city  to  take  care  of  this 
family,  testifies  that  the  paper  needed  to  be  taken  off;  that  it  was  dirty 
around  where  the  diseased  folks  were;  that  it  was  all  dirty;  that  the 
spittle  from  the  mouths  of  the  patients  flew  upon  it.  Doctor  Blaids- 
dell,  who  attended  the  family  some  two  or  three  weeks  before  it  came 
under  the  care  of  the  defendant,  testifies  that  he  noticed  the  paper 
particularly  about  the  bed  and  that  it  was  a  good  deal  soiled ;  that  he 
supposed  the  patient  must  have  spit  a  good  deal  and  was  not  par- 
ticular where  he  spit;  that  in  such  cases  it  is  difficult  to  expectorate; 
that  the  more  \'iolent  the  disease  the  more  adhesive  the  saliva;  that 
there  is  usually  a  great  deal  of  saliva  in  all  cases;  that  in  this  case  the 
patient  lay  against  the  wall  some  of  the  time  and  that  when  the  patient 
is  against  the  wall  and  soils  the  paper  by  saliva  and  by  putting  his  hands 
upon  it  the  best  medical  advice  is  to  remove  it  and  whitewash  the  wall 
with  quicklime;  that  in  this  case  he  should  have  stripped  off  all  the 
paper.  Other  physicians  called  by  the  defendant  express  substantially 
the  same  opinion. 

Under  these  circumstances  what  w^as  it  the  duty  of  the  defendant  to 
do?  The  small-pox  seems  to  have  been  unusually  prevalent.  The 
defendant  testifies  that  he  had  a  hundred  and  seven  cases  during  the 
winter.  He  was  city  physician.  Upon  his  efforts  in  a  large  degree 
depended  the  safety  of  the  city.  He  could  not  go  to  his  medical 
brethren  for  direction,  for  they  as  usual  were  divided  in  opinion.  The 
mandate  of  the  law  to  him  was  "Use  all  possible  care."  Under  these 
circumstances  we  think  he  was  justified  in  advising  the  removal  of 
the  paper  from  the  walls  of  the  rooms  in  which  the  small-pox  patients 
had  been  confined,  and  that  the  law  protected  him  in  so  doing. 

Motion  sustamed. 


476  PAUL    V.    SUMMER  HAYES.  [CHAP.  V. 


PAUL  V.   SUMMERHAYES. 
Queen's  Bench  Division,  1878. 

[Reported  L.  R.  4  Q.  B.  D.  9.] 

Case  stated  by  justices  under  20  &  21  Vict.  c.  43,  upon  a  conviction 
of  the  appellants  upon  an  information  for  an  assault. 

The  appellants  were  persons  who,  on  the  occasion  in  question,  were 
engaged  in  hunting  with  a  pack  of  foxhounds.  In  the  pursuit  of  a  fox, 
which  the  hounds  were  running,  the  appellants  sought  to  enter  upon  a 
field  forming  part  of  a  farm  belonging  to  the  respondent's  father, 
which  the  respondent  managed  on  his  father's  behalf.  The  respondent 
warned  them  off,  and  endeavoured  to  resist  their  entry  on  the  field. 
For  the  purpose  of  overcoming  his  resistance  to  their  entry,  they  com- 
mitted the  assault  complained  of,  and  the  main  question  in  the  case 
was  whether,  under  the  abo^'e-mentioned  circumstances,  there  was  any 
justification  for  the  assault.  The  justices  convicted  the  appellants  in 
the  sums  of  20*.  and  10*.  respectively. 

Lord  Coleridge,  C.  J.  I  am  of  opinion  that  the  conviction  should 
be  affirmed.  The  statute  1  &  2  Wm.  4,  c.  32,  s.  35,  really  has  no  ap- 
plication to  the  case.  That  section  of  the  statute  merely  provides  that 
certain  foregoing  provisions  shall  not  apply  to  persons  in  fresh  pursuit 
of  a  fox.  But,  in  truth,  when  the  statute  is  examined,  it  will  be  seen 
that  those  provisions  would  not  apply  to  the  pursuit  of  the  fox,  the 
animal  not  being  game.  So  the  provisions  of  s.  35  seem  only  to  have 
been  put  in  ex  majori  cautela,  to  prevent  certain  penalties  for  a  particular 
class  of  trespass,  ^^z.,  trespass  in  pursuit  of  game,  from  applying  to 
foxhunters.  There  is  nothing,  therefore,  in  the  act  to  alter  the  common 
law  with  regard  to  trespass  so  far  as  concerns  foxliunting.  The  real 
question  is  whether  under  the  circumstances  the  respondent  was 
justified  in  resisting  the  entry  of  the  appellants  on  his  father's  land. 
I  am  of  opinion  that  he  was.  It  was  suggested  that  there  is  authority 
that  foxhunting  in  the  popular,  well  understood,  sense  of  the  term, 
that  is,  as  a  sport,  can  be  carried  on  over  the  land  of  a  person  without 
his  consent  and  against  his  will,  and  the  case  of  Gundry  v.  Feltham, 
1  T.  R.  334,  was  cited  as  authority  for  that  proposition.  I  am  of 
opinion  that  no  such  right  as  that  claimed  exists:  The  sport  of  fox- 
hunting must  be  carried  on  in  subordination  to  the  ordinary  rights  of 
property.  Questions  such  as  the  present  fortunately  do  not  often 
arise,  because  those  who  pursue  the  sport  of  foxhunting  do  so  in  a 
reasonable  spirit,  and  only  go  upon  the  lands  of  those  whose  consent 
is  expressly,  or  may  be  assumed  to  be  tacitly,  given.  There  is  no 
principle  of  law  that  justifies  trespassing  over  the  lands  of  others  for 
the  purpose  of  foxhunting.    Tl.e  case  of  Gundry  r.  Feltham,  1  T.  R.  .334, 


SECT.  II.]  PAUL  V.    SUMMERHAYES.  477 

is  distinguishable  from  the  present  case,  and  can  be  supported,  if  it 
is  to  be  supported  at  all,  only  on  the  grounds  suggested  by  Lord  Ellen- 
borough  in  the  ease  of  Lord  Essex  v.  Capel,  Locke  on  Game  Laws,  45, 
to  which  we  have  been  referred.  The  demurrer  admitted  that  what  was 
done  was  the  only  means  for  destroying  the  fox,  and  BuUcr,  J.,  expressly 
puts  his  decision  on  that  ground.  The  case  was  brought  under  the  con- 
sideration of  Lord  Ellenborough  in  Lord  Essex  v.  Capel,  Locke  on 
Game  Laws,  45,  and  he  was  distinctly  of  opinion  that,  where  any  other 
object  was  involved  than  that  of  the  destruction  of  a  noxious  animal, 
an  entry  on  the  land  of  another,  against  his  will,  could  not  be  justi- 
fied. In  the  case  of  Lord  Essex  v.  Capel,  Locke  on  Game  Laws,  45,  it 
had  been  pleaded  that  the  means  adopted  were  the  only  means,  and 
also  that  they  were  the  ordinary  and  proper  means  of  destroving  the 
fox.  But  the  evidence  clearly  showed  that  in  the  case  of  foxhunting, 
as  ordinarily  pursued,  the  object  of  destroying  the  animal  is  only  col- 
lateral. The  interest  and  excitement  of  the  chase  is  the  main  object. 
Lord  Ellenborough,  than  whom  there  could  be  no  higher  authority  on 
such  a  point,  was  of  opinion  that  where  this  was  the  case,  and  where 
the  real  object  was  not  the  mere  destruction  of  a  noxious  animal,  a 
trespass  could  not  be  justified.  If  persons  pursue  the  fox  for  the 
purpose  of  sport  or  diversion,  they  must  do  so  subject  to  the  ordi- 
nary rights  of  propert3\  It  would  seem  that  there  may  be  some  doubt 
as  to  the  validity  of  the  justification  even  where  the  only  object  is  the 
destruction  of  a  noxious  animal.  The  idea  that  there  was  such  a 
right  as  that  of  pursuing  a  fox  on  another's  land  appears  to  have  been 
based  on  a  mere  dictum  of  Brook,  J.,  in  the  Year  Book,  12  Hen.  8,  p.  10. 
This  dictum  was  not  necessary  for  the  decision  of  the  case,  for  there 
the  chasing  of  a  fox  was  not  in  question,  and  the  case  went  off  on  an 
entirely  different  point.  It  may  well  be  doubted  in  my  opinion  whether, 
even  if  the  case  were  one  in  which  the  destruction  of  a  fox  as  a  noxious 
animal  was  the  sole  object,  there  would  be  any  justification.  That 
question,  however,  does  not,  I  think,  arise  here.  It  is  enough  to  say 
that  the  case  of  Gundry  v.  Feltham,  1  T.  R.  334,  and  the  dictum  of 
Brook,  J.,  in  the  Year  Book,  12  Hen.  8,  p.  10,  do  not  at  all  conflict 
with  the  opinion  expressed  by  Lord  Ellenborough  in  Lord  Essex  v. 
Capel,  Locke  on  Game  Laws,  45,  which  appears  to  me  to  be  the  true 
\Tiew  of  the  law,  \az.,  that  a  person  has  no  right,  in  the  pursuit  of  the 
fox  as  a  sport,  to  come  upon  the  land  of  another  against  his  will. 
For  these  reasons  our  judgment  must  be  for  the  respondent. 

Mellor,  J.  I  am  of  the  same  opinion.  The  1  &  2  Wm.  4,  c.  32, 
has  really  no  application  to  the  case.  The  31st  section  of  the  act 
contains  certain  provisions  for  preventing  trespasses  in  pursuit  of 
game.  Foxes,  however,  are  not  game,  and  so  not  within  the  provisions 
of  the  section.  In  any  case  the  exception  in  favour  of  foxhunting  in  the 
35th  section  could  only  apply  to  the  special  provisions  of  the  act  for 
the  protection  of  game,  and  could  not  affect  the  question  whether  a 


478  KELEHER   V.   PUTNAM.  [CHAP.  V. 

trespass  could  be  justified  at  common  law  in  the  course  of  hunting  a 
fox,  which  is  the  real  question  in  the  case.  That  question  has  been 
fully  discussed  by  my  Lorfl.  The  counsel  for  the  appellants  did  not 
venture  to  insist,  in  contravention  of  all  common  sense  and  experience, 
that  the  object  of  foxhunting,  as  ordinarily  pursued,  was  the  destruc- 
tion of  a  noxious  animal  which  does  mischief  to  farmers  and  others. 
The  case  of  Gundry  v.  Feltham,  1  T.  R.  334,  is  therefore  distinguishable. 
The  view  taken  by  Lord  Ellenborough  in  the  case  of  Lord  Essex  v. 
Capel,  Locke  on  Game  Laws,  45,  in  which  the  question  was  really  the 
same  as  that  in  the  present  case,  was  quite  consistent  with  the  decision 
in  Gundry  v.  Feltham,  1  T.  R.  334,  and  it  appears  to  me  to  be  the  only 
view  that  is  possible  consistently  with  common  sense  and  the  ordinary 
rights  of  property.^ 

Judgment  for  the  respondent. 


KELEHER  v.  PUTNAM. 

Supreme  Court  of  New  Hampshire,  1880. 

[Reported  60  A' .  //.  30.] 

Trespass,  for  assault  and  false  imprisonment.  Plea,  the  general 
issue,  with  a  brief  statement.  The  plaintiff  kept  a  small  store  in 
Manchester.  Putnam,  one  of  the  defendants,  was  a  county  com- 
missioner. The  evidence  tended  to  show  that  the  plaintiff  was 
afflicted  with  insane  delusions,  and  disturbed  her  neighbors  and  the 
inmates  of  the  house  where  she  boarded.  Physicians  examined  her, 
and  said  she  ought  to  be  cared  for.  Complaint  being  made  to  Putnam, 
he  N^isited  her,  and,  in  answer  to  his  inquiries,  she  informed  him  she 
had  friends  in  Lawrence,  Mass.,  and  requested  to  be  sent  there. 

He  told  her  he  would  send  a  man  with  her.  For  that  purpose  he 
employed  Reed,  the  other  defendant,  who  called  at  the  plaintiff's 
store  with  a  carriage,  and  told  her  he  had  come  to  take  her  to  Law- 
rence. She  manifested  a  disposition  not  to  go,  and  Reed  partly  pushed 
and  partly  carried  her  into  the  carriage,  which  was  driven  to  the  depot, 
where  they  entered  a  car  and  were  taken  to  Lawrence.  There  he  de- 
livered her  to  the  city  marshal,  whom  he  informed  of  the  circumstances. 
The  court  instructed  the  jury  that  if  the  plaintiff  requested  Putnam 
to  take  her  to  Lawrence,  or  if  she  was  insane  or  dangerous,  or  dis- 
turbing the  neighborhood,  and  if  he  acted  solely  from  the  motive  of 
placing  lier  in  the  custody  of  her  friends  so  that  she  might  be  properly 
cared  for,  and  not  to  rid  the  county  of  a  public  charge,  the  defendants 
were  not  liable;  and  the  plaintiff  excepted.    Verdict  for  the  defendants. 

Bingham,  J.     A  county  commissioner   has   no   authority  over  in- 

1  See  also  Essex  v.  Capel,  4  Campb.  Lives  Ch.  Just.  225,  Ames  Cas.  Torts  (3d 
ed.)  2l().—  Ed. 


SKCT.  II.]  FIELDS    V.    STOKLEY.  479 

sane  persons  by  virtue  of  his  office.  The  right  of  personal  liberty  is 
subject  to  some  exceptions  necessary  to  the  common  welfare  of  society. 
At  common  law  a  private  citizen,  without  warrant,  may  lawfully  seize 
and  detain  another  in  certain  cases.  It  is  justifiable  to  hold  a  man 
to  restrain  him  from  mischief.  It  is  lawful  to  interfere  in  an  affray 
which  endangers  the  lives  of  the  combatants.  Other  instances  are 
enumerated  in  Colby  v.  Jackson,  12  N.  H.  526.  Under  the  right  of 
self-defense  it  is  lawful  to  seize  and  restrain  any  person  incapable  of 
controlling  his  own  actions,  whose  being  at  large  endangers  the  safety 
of  others.  But  this  is  justifiable  only  when  the  urgency  of  the  case 
demands  immediate  intervention.  The  right  to  exercise  this  summary 
remedy  has  its  foundation  in  a  reasonable  necessity,  and  ceases  with 
the  necessity.  A  dangerous  maniac  may  be  restrained  temporarily^ 
until  he  can  be  safely  released,  or  can  be  arrested  upon  legal  process, 
or  committed  to  the  asylum  under  legal  authority.  But  not  every  in- 
sane person  is  dangerous.  Nothing  can  be  more  harmless  than  some  of 
the  milder  forms  of  insanity.  Nor  is  it  any  justification  that  the  de- 
fendants were  actuated  by  a  desire  to  promote  the  plaintiff's  welfare. 
The  right  of  personal  liberty  is  deemed  too  sacred  to  be  left  to  the 
determination  of  an  irresponsible  individual,  however  conscientious. 
The  law  gives  these  unfortunate  persons  the  safeguards  of  legal  pro- 
ceedings and  the  care  of  responsible  guardians.  Da\is  v.  Merrill, 
47  N.  H.  208;  22  Monthly  Law  Rep.,  385;  6  South.  Law  Rev.  (N.  S.), 
568;  3  Am.  Law  Rev.,  193;  Ray  Insan.,  ss.  614-619.  The  legislature 
has  established  appropriate  forms  of  proceeding  for  ascertaining  their 
mental  condition,  imposing  upon  them,  under  the  supervision  of  public 
functionaries,  the  restraint  necessary  to  protect  them  from  the  imposi- 
tion of  others,  and  subjecting  them  to  such  treatment  as  may  restore 
their  reason.  If  the  pl&intilf  requested  to  be  taken  to  Lawrence,  she 
revoked  the  license  by  resisting  the  removal.  The  instructions  given 
to  the  jury  were  erroneous.  The  question  was,  whether  the  plaintiff's 
removal  was  reasonably  necessary  under  the  circumstances  of  the  case. 
Cooley  Torts,  176-179;  Addison  Torts,  c.  12,  s.  2. 


Verdict  set  aside. 


Stanley,  J.,  did  not  sit:  the  others  concurred. 


FIELDS  V.   STOKLEY. 
Supreme  Court  of  Pennsylvania,  1882. 

[Reported  99  Pa.  206.] 

Trespass,  by  George  F.  Fields  against  William  S.  Stokley,  to 
recover  damages  for  the  destruction  of  a  wooden  building  belonging 
to  the  plaintiff  which  had  been  torn  down  and  demolished  by  defend- 


480  FIELDS    V.    STOKLEY.  [CHAP.  V. 

ant's  orders.    Pleas,  not  guilty,  and  a  special  plea,  to  which  a  demurrer 
was  sustained. 

Defendant  then  filed  an  additional  plea,  all  the  facts  set  forth  in 
which  were  admitted  on  the  trial,  to  wit:  That  the  defendant  was,  in 
September,  1876,  at  the  date  of  the  alleged  trespass,  mayor  of  Phila- 
delphia, and  also  a  citizen,  tax-payer,  and  property  owner;  that  the 
United  States  Centennial  Exhibition  was  then  in  progress  at  Fairmount 
Park;  that  the  plaintiff  and  others,  in  violation  of  an  ordinance  of 
councils,  had  erected  on  Elm  Avenue,  bordering  on  the  Exhibition 
grounds,  numbers  of  wooden  booths,  sheds,  shanties,  and  buildings, 
composed  wholly  of  highly  combustible  materials,  insufhciently  pro- 
vided with  chimneys  or  protected  against  fire,  that  of  the  plaintiff 
being  occupied  as  a  bar-room,  and  the  resort  of  disorderly  persons; 
that  the  said  premises  were  in  close  proximity  to  the  buildings  of  the 
city.  State,  and  other  buildings  of  the  International  Exposition,  which 
were  thereby  imperiled.  That  the  grand  jury  made  a  special  present- 
ment to  the  quarter  sessions  of  the  said  wooden  buildings  as  common 
nuisances,  dangerous  to  life  and  property,  whereupon  the  judge  then 
holding  said  court,  ordered  the  defendant,  as  mayor,  to  abate  said  nui- 
sance by  tearing  down  and  removing  said  buildings,  if  the  owners 
thereof,  after  forty-eight  hours'  notice,  failed  so  to  do ;  and  the  plaintiff 
ha\'ing  failed  to  remove  the  building  in  question  after  notice,  the  de- 
fendant caused  the  same  to  be  torn  down,  doing  as  little  damage  as 
he  reasonal)ly  could,  etc. 

It  further  appeared  on  the  trial,  before  Prircr,  J.,  that  the  plaintiff 
had  leased  the  lots  whereon  the  building  in  question  was  erected;  that 
it  was  so  erected  without  a  permit  from  the  building  inspectors,  and 
without  authority  from  councils,  the  mayor  ha\ang  vetoed  an  ordinance 
which  had  been  passed  permitting  its  erection;  the  plaintiff  and  his 
builder  admitted  that  they  knew  they  were  erecting  the  building  in 
violation  of  law. 

The  plaintiff  requested  the  court  to  instruct  the  jury:  "That  the 
defendant  acted  wholly  without  authority  of  law  in  tearing  down  the 
building  of  the  plaintiff,  and  he  is  liable  for  the  damage  resulting  from 
his  commands,  and  the  jury  should  find  a  verdict  for  the  plaintiff  for 
the  amount  of  damages  which  they  believed,  according  to  the  evidence, 
he  sustained."  Answer.  I  do  not  affirm  that  point;  on  the  contrary, 
I  negative  it,  leaving  to  you  the  question  of  nuisance,  or  no  nuisance; 
then  if  no  nuisance,  the  plaintiff  is  entitled  to  any  damage  sustained; 
and  if  nuisance,  if  the  plaintiff  maintained  a  nuisance  there,  then  he  is 
not  entitled  to  any  damages." 

In  the  general  charge  the  judge  said:  "The  first  question  which 
arises  in  this  case  is,  was  or  was  not  this  building,  thus  taken  down  by 
the  mayor,  a  nuisance?  Was  it  such  a  common  peril  to  the  welfare  of 
the  citizens  of  Philadelphia,  and  to  all  who  were  to  assemble  here  and 
visit  the  great  exhibition,  to  the  property  exposed  to  danger,  as  to 


SECT.  II.]  FIELDS    V.    STOKLEY.  481 

amount  to  a  nuisance?  .  .•  .  If  you  find  it  to  be  a  nuisance,  then  I 
say  that  the  defendant  must  justify  himself  linder  the  fact  that  it  was 
a  nuisance,  and  especially  acting  as  the  head  of  a  great  municipality; 
acting  under  the  order  of  a  judge  of  a  court;  acting  upon  the  present- 
ment of  a  grand  jury,  all  tend  to  show  that  it  was  not  mere  private 
thought  or  feeling,  that  he  was  not  prompted  to  it  by  any  desire  to  do 
any  particular  wrong  to  this  individual.  .  .  .  You  will  look  at  the  whole 
case  carefully,  and  at  the  facts  and  the  law  as  I  have  given  it  to  you, 
and  if  you  find  the  plaintiif  was  maintaining  a  nuisance  there,  then  he 
is  not  entitled  to  recover  at  all,  and  your  verdict  should  be  for  the 
defendant.  If,  on  the  contrary,  there  was  no  nuisance  there,  then  you 
will  give  such  damages  as  the  plaintiff  would  be  entitled  to  recover 
under  the  e\'idence  and  facts  as  they  have  been  testified  to  here." 

Verdict  and  judgment  for  defendant.  The  plaintiff  took  this  writ 
of  error,  signing  for  error  (1)  the  refusal  of  the  court  to  affirm  his 
point,  as  above,  and  (2)  "that  the  entire  charge  was  calculated  to 
mislead  the  jury  in  this,  that  a  wooden  building  erected  on  private 
freehold  could  be  a  public  nuisance;  and  that,  without  conviction  on 
indictment,  or  a  decree  of  a  court,  an  individual  who  was  a  mayor 
could  abate  it  at  his  will." 

Sharswood,  C.  J.  It  appears  by  the  record  before  us  that  it  was 
expressly  agreed,  after  the  trial  had  progressed  some  time,  that  all 
the  facts  set  forth  in  the  special  plea,  not  alread}'  proved,  should  be 
considered  as  having  been  proved.  The  plea,  inicr  alia,  avers  that  the 
houses  mentioned  in  the  declaration  and  for  the  removal  of  which  this 
action  was  brought  were  composed  wholly  of  liighly  inflammal)le  and 
combustible  materials,  and  were  insufficiently  provided  with  chimneys 
and  the  usual  and  ordinary  appliances  for  protection  against  fire,  and 
were  so  used  constantly,  night  and  day,  by  drunken  and  disorderly 
persons,  that  the  li^-es,  health,  and  property  of  citizens  were  greatly 
endangered  and  the  public  safety  imperiled.  The  question  whether 
they  were  a  public  nuisance  was  fairly  submitted  to  the  jury  by  the 
learned  judge  below,  and  the  verdict  of  the  jury  in  favor  of  the  defend- 
ant established  that  fact.  Had  the  presentment  by  the  grand  jury 
been  followed  up  by  an  indictment,  trial,  and  conviction  of  the  plaintiff 
below,  the  judgment  thereon  would  have  been  that  the  nuisance  sliould 
be  abated,  and  would  have  been  a  conclusive  justification  of  the  action 
of  the  defendant.  The  defendant  was  the  mayor  of  the  city,  and  charged 
with  the  conservation  of  the  peace  and  the  protection  of  the  property 
of  the  city.  He  was  the  representative  of  the  city.  It  is  true  that  a 
wooden  building,  though  erected  contrary  to  law,  is  not  per  sc  a  public 
nuisance.  But  it  may  become  such  by  the  manner  in  which  it  is  used 
or  allowed  to  be  used.  It  is  true  that  a  private  person  not  speciall\- 
aggrieved  cannot  abate  a  public  nuisance,  and  especially  where  a  statute 
provides  a  remedy  for  an  offense  created  by  it,  that  must  be  followed. 
It  is  well   settled,  however,  that  a   private  person,  if  specially   ag- 


482  FIELDS    V.   STOKLEY.  [CHAP.  V. 

grieved  by  a  public  nuisance,  may  abate  it:  In  Rung  v.  Shoneberger, 
2  Watts,  23,  it  was  held  by  this  court  that  the  erection  of  a  building  upon 
the  public  square  of  a  town  was  a  public  and  not  a  private  offense, 
and  may  be  abated  by  any  one  aggrieved.  In  that  Case  the  buildings 
were  removed  by  officers  of  the  town  by  virtue  of  the  authority  of  the 
town  council,  and  the  persons  in  possession,  and  who  had  erected  the 
buildings,  had  recovered  in  an  action  of  trespass.  The  judgment, 
however,  was  reversed,  Mr.  Justice  Rogers  sa^-ing,  "A  nuisance,  whether 
public  or  private,  may  be  abated  by  the  party  aggrieved,  so  that  it  is 
done  peaceably  and  without  a  riot.  The  reason  (says  Blackstone,  3 
Com.  5)  wh}'  the  law  allows  this  private  and  summary  method  of 
doing  justice,  is  because  injuries  which  obstruct  or  arrest  such  things 
as  are  of  daily  convenience  and  use,  require  an  immediate  remedy, 
and  cannot  wait  for  the  slow  progress  of  the  ordinary  forms  of  justice." 
The  jury,  luider  the  charge  of  the  learned  judge,  has  found  these  build- 
ings to  be  of  that  character.  The  city  of  Philadelphia  was  the  owner 
of  large  and  valuable  property  in  their  neighborhood.  Any  hour  of 
the  day  or  night  they  were  in  danger  of  being  set  on  fire  by  those  who 
frequented  them  with  the  owner's  permission.  It  is  stated  as  a  fact 
in  the  special  plea,  and  of  course  a  fact  admitted  by  the  agreement, 
that  the  public  safety  was  imperiled.  Nothing  more  was  necessary  to 
justify  the  action  of  the  defendant.  If  the  owner  or  tenant  of  a  powder 
magazine  should  madly  or  wickedly  insist  upon  smoking  a  cigar  on  the 
premises,  can  any  one  doubt  that  a  policeman  or  even  a  neighbor  could 
justify  in  trespass  for  forcibly  ejecting  him  and  his  cigar  from  his  own 
premises?  It  is  true,  that  a  private  person  assuming  to  abate  a  public 
nuisance  takes  upon  himself  the  responsibility  of  proving  to  the  satis- 
faction of  a  jury,  the  fact  of  nuisance.  The  official  position  of  the  de- 
fendant, as  mayor  of  Philadelphia,  did  not  relieve  him  from  his  per- 
sonal responsibility  in  this  respect.  But  he  has  been  sustained  by  the 
verdict  of  the  jury,  which  is  a  justification  of  his  alleged  trespass.  We 
are  of  opinion  that  this  case  was  properly  submitted  to  the  determina- 
tion of  the  jury,  that  there  was  nothing  in  the  charge  calculated  to 
mislead  them,  and  that  it  would  have  been  manifest  error  if  the  learned 
judge  had  affirmed  the  plaintiff's  point,  and  thereby  in  efl^ect  instructed 
the  jury  to  find  a  verdict  in  his  favor.^ 

Judgment  affirmed. 

^  See  also  Jones  v.  Williams,  11  M.  &  W.  176;  Brown  v.  Perkins,  12  Gray,  89; 
Meeker  v.  Van  Rensselaer,  15  Wend.  397.  —  Ed. 


SECT.  II.]  STATE   V.    GUT.  483 


STATE  V.   GUT. 
Supreme  Court  of  Minnesota,  1868. 

[Reported  13  Mirm.  341.] 

Wilson,  C.  J.  The  defendant  was  indicted  for  the  murder  of  Charles 
Campbell,  and  ha\'ing  been  tried,  was  found  guilty,  on  the  31st  day  of 
January,  and  sentenced  on  the  1st  day  of  February  following.^  .  .  . 

It  is  admitted  in  the  bill  of  exceptions  that  the  evidence  on  the 
part  of  the  State  established  the  fact  that,  at  New  Ulm,  in  the  county 
of  Brown,  and  State  of  Minnesota,  on  the  25th  day  of  December, 
1866,  Alexander  Campbell,  the  person  named  in  the  said  indictment, 
and  one  George  Liscome,  were  arrested  at  the  saloon  known  as  the 
National  Hall  saloon,  in  the  said  town  of  New  Ulm,  by  the  sheriff  and 
ot^ier  officers  of  the  said  county  of  Brown,  and  taken  to  and  confined 
in  the  jail  of  said  county,  which  said  jail  was  but  a  short  distance  from 
said  saloon.  That  at  the  time  the  said  arrest  was  made  a  report  was 
very  generally  circulated  through  said  town  to  the  effect  that  two  half- 
breeds  had  murdered  John  Spinner.  That  in  about  twenty-five  or 
thirty  minutes  after  the  same  was  first  circulated,  a  large  crowd  of 
over  one  hundred  men,  very  much  excited,  assembled  at  said  jail. 
That  great  noise  and  confusion  prevailed  in  said  crowd,  and  the  pre- 
vailing cry  was,  bring  out  the  halfbreeds,  hang  the  halfbreeds,  out 
with  the  Indians.  That  one  of  the  said  witnesses  for  the  State,  to 
wit,  George  Schneider,  testified  that  the  crowd  called  out  that 
Campbell  was  the  brother  of  the  halfbreed  Campbell  whom  the  people 
had  recently  hanged  at  Mankato  for  the  murder  of  white  people. 

That  the  defendant,  John  Gut,  arrived  at  said  jail  after  the  said 
crowd  had  principally  assembled  there,  and  about  the  time  the  said 
crowd  broke  open  the  said  jail  and  brought  out  the  said  Campbell; 
that  the  said  Gut  had  no  knowledge  of  the  purpose  of  said  crowd  in 
assembling  at  said  jail,  until  after  his  arrival  there,  and  all  he  learned 
concerning  the  intention  and  purpose  of  said  crowd  was  from  the  outcry 
of  said  crowd,  and  what  he  saw  after  his  arrival, at  said  jail;  that  when 
said  Gut  was  reproved  by  the  witness  for  the  stabljing  of  the  prisoners, 
he  replied:  These  two  halfbreeds  killed  my  best  friend,  John  Spinner, 
and  I  will  kill  them ;  let  me  alone  or  I  will  stab  you !  That  said  crowd 
did  break  open  said  jail,  and  did  take  out  said  Campbell,  and  did  hang 
him  by  the  neck  until  he  was  dead,  and  that  said  John  Gut  did  partici- 
pate in  the  doings  of  said  crowd  by  stabbing  said  Campbell  with  a 
knife,  both  before  and  after  he  was  hanged  by  said  crowd.  That  said 
Campbell  and  Liscome  before  they  were  arrested  in  said  saloon  were 

*  Only  so  much  of  the  opinion  as  considers  the  defense  discussed  is  given.  —  Ed. 


484  O'BRIEN    v.    CUNARD    STEAMSHIP    CO.  [CHAP.  V. 

dressed  as  follows:  Said  Campbell  had  on  his  head  a  hood  made  of 
dark  blue  cloth,  or  blanket,  such  as  is  worn  by  the  Sioux  Indians. 
That  one  of  said  parties,  either  Campbell  or  Liscome,  had  on  Indian 
moccasins. 

That  both  said  Campbell  and  Liscome  wore  belts  on  the  outside  of 
all  their  clothing,  in  which  belts  were  knife  sheaths,  and  when  seen 
in  said  saloon  by  the  State  witnesses,  they  had  their  knives  in  their 
hands.  .  .  .  The  e^^dence  offered  to  prove  that  a  state  of  war  existed 
between  the  United  States  and  Sioux  Indians,  and  that  the  State, 
through  its  legal  authorities,  had  offered  a  reward  for  the  killing  of 
any  male  of  that  tribe,  was  properly  rejected.  That  it  is  legal  to  kill 
an  alien  enemy  in  the  heat  and  exercise  of  war,  is  undeniable :  but  to 
kill  such  an  enemy  after  he  has  laid  down  his  arms,  and  especially 
when  he  is  confined  in  prison,  is  murder.  1  Bish.  Cr.  Law,  102;  2  lb., 
668. 

The  evidence  that  war  existed  between  the  Sioux  Indians  and  the 
L^nited  States,  and  that  the  deceased  was  supposed  to  be  a  Sioux 
Indian,  was  therefore  immaterial. 

It  is  not  pretended  that  there  was  a  law  of  our  State  authorizing 
the  killing  of  a  male  of  that  tribe,  and  the  proclamation  or  order  of  any 
officer  of  the  State  could  not  make  that  right  which  is  wrong,  or  legal 
which  is  illegal.  If  such  a  proclamation  or  order  was  made,  and  if  on 
account  thereof  any  ignorant  person  was  misled  into  the  commission 
of  crime,  it  is  for  the  governor  to  determine  whether  that  would  be  a 
proper  case  for  the  exercise  of  executive  clemency. 


O'BRIEN  V.   CUNARD  STEAMSHIP  CO. 
Supreme  Judicial  Court  of  Massachusetts,  1891. 

[Reported  154  Mass.  272.] 

Tort,  for  an  assault,  and  for  negligently  vaccinating  the  plaintiff, 
a  steerage  passenger  on  the  steamship  Catalonia.  Trial  in  the  Superior 
Court,  l)efore  Staples,  J.,  who  ruled  that,  upon  the  e\'idence,  the 
plaintiff  could  not  maintain  the  action,  and  ordered  a  verdict  for  the 
defendant;  and  the  plaintiff  alleged  exceptions.  The  nature  of  the 
evidence  appears  in  the  opinion. 

Knowlton,  J.  This  case  presents  two  questions:  first,  whether 
there  was  any  evidence  to  warrant  the  jury  in  finding  that  the  de- 
fendant, by  any  of  its  servants  or  agents,  committed  an  assault  on 
the  plaintiff;  secondly,  whether  there  was  evidence  on  which  the  jury 
could  ha^•e  found  that  the  defendant  was  guilty  of  negligence  towards 
the  plaintiff.  To  sustain  the  first  count,  which  was  for  an  alleged 
assault,  the  plaintift"  relied  on  the  fact  that  the  surgeon  who  was  em- 


SECT.  II.]  O'BRIEN   V.    CUNARD    STEAMSHIP   CO.  485 

ployed  by  the  defendant  vaccinated  her  on  shipboard,  while  she  was 
on  her  passage  from  Queenstown  to  Boston.  On  this  branch  of  the 
case  the  question  is  whether  there  was  any  evidence  that  the  surgeon 
used  force  upon  the  plaintiff  against  her  will.  In  determining  whether 
the  act  was  lawful  or  unlawful,  the  surgeon's  conduct  must  be  con- 
sidered in  connection  with  the  circumstances.  If  the  plaintiff's  be- 
ha\ior  was  such  as  to  indicate  consent  on  her  part,  he  was  justified  in 
his  act,  whatever  her  unexpressed  feelings  may  have  been.  In  deter- 
mining whether  she  consented,  he  could  be  guided  only  by  her  overt 
acts  and  the  manifestations  of  her  feelings.  Ford  v.  Ford,  143  Mass. 
577,  578.  McCarthy  v.  Boston  &  Lowell  Railroad,  148  Mass.  550, 
552.  It  is  undisputed  that  at  Boston  there  are  strict  quarantine 
regulations  in  regard  to  the  examination  of  immigrants,  to  see  that 
they  are  protected  from  small-pox  by  vaccination,  and  that  only  those 
persons  who  bold  a  certificate  from  the  medical  officer  of  the  steam- 
ship, stating  that  they  are  so  protected,  are  permitted  to  land  without 
detention  in  quarantine  or  vaccination  by  the  port  physician.  It 
appears  that  the  defendant  is  accustomed  to  have  its  surgeons  vacci- 
nate all  immigrants  who  desire  it,  and  who  are  not  protected  by  pre- 
vious vaccination,  and  give  them  a  certificate  which  is  accepted  at 
quarantine  as  evidence  of  their  protection.  Notices  of  the  regulations 
at  quarantine,  and  of  the  willingness  of  the  ship's  medical  officer  to 
vaccinate  such  as  needed  vaccination,  were  posted  about  the  ship, 
in  various  languages,  and  on  the  day  when  the  operation  was  performed 
the  surgeon  had  a  right  to  presume  that  she  and  the  other  women 
who  were  vaccinated  understood  the  importance  and  purpose  of  vac- 
cination for  those  who  bore  no  marks  to  show  that  they  were  pro- 
tected. By  the  plaintiff's  testimony,  wliich  in  this  particular  is  un- 
disputed, it  appears  that  about  two  hundred  women  passengers  were 
assembled  below,  and  she  understood  from  conversation  with  them 
that  thev  were  to  be  vaccinated ;  that  she  stood  about  fifteen  feet  from 
the  surgeon,  and  saw  them  form  in  a  line  and  pass  in  turn  before  him; 
that  he  "examined  their  arms,  and,  passing  some  of  them  by,  pro- 
ceeded to  vaccinate  those  that  had  no  mark";  that  she  did  not  hear 
him  say  anything  to  any  of  them;  that  upon  being  passed  by  they 
each  received  a  card  and  went  on  deck;  that  when  her  turn  came  she 
showed  him  her  arm,  and  he  looked  at  if  and  said  there  was  no  mark, 
and  that  she  should  be  vaccinated ;  that  she  told  him  she  had  been  vac- 
cinated before  and  it  left  no  mark ;  "  that  he  then  said  nothing,  that  he 
should  vaccinate  her  again";  that  she  held  up  her  arm  to  be  vac- 
cinated; that  no  one  touched  her;  that  she  did  not  tell  him  that  she  did 
not  want  to  be  vaccinated;  and  that  she  took  the  ticket  whicii  he 
gave  her  certifying  that  he  had  vaccinated  her,  and  used  it  at  quaran- 
tine. She  was  one  of  a  large  number  of  women  who  were  vaccinated 
on  that  occasion,  without,  so  far  as  appears,  a  word  of  objection  from 
any  of  them.     They  all  indicated  by  their  conduct  that  they  desired 


486  SCANLON    V.   WEDGER.  [CHAP.  V- 

to  avail  themselves  of  the  provisions  made  for  their  benefit.  There 
was  nothing  in  the  conduct  of  the  plaintiff  to  indicate  to  the  surgeon 
that  she  did  not  wish  to  obtain  a  card  which  would  save  her  from 
detention  at  quarantine,  and  to  be  vaccinated,  if  necessary,  for  that 
purpose.  Viewing  his  conduct  in  the  light  of  the  circumstances,  it 
was  lawful ;  and  there  was  no  evidence  tending  to  show  that  it  was  not. 
The  ruling  of  the  court  on  this  part  of  the  case  was  correct.^ 

Exceptions  overruled. 


^  SCANLON  V.  WEDGER. 

Supreme  Judicial  Court  of  Massachusetts,  1892. 

[Reported  156  Mass.  462.] 

Allen,  J.  The  several  plaintiffs  were  injured  by  the  explosion  of 
a  bomb  or  shell  during  a  display  of  fireworks  in  Broadway  Square, 
which  was  a  public  highway  in  Chelsea.  This  display  was  made  by 
the  defendant  Wedger,  who  acted  under  a  license  from  the  mayor 
and  aldermen  of  Chelsea  for  a  display  of  fireworks  in  Broadway  Square 
on  that  evening,  under  Pub.  Sts.  c.  102,  §  55.  A  verdict  was  returned 
for  the  defendant,  and  the  jury  made  a  special  finding  that  the  defend- 
ant in  firing  the  bomb  exercised  reasonable  care.  The  case  comes  to 
us  on  a  report  which  states  that  if,  on  the  facts  contained  therein,  and 
on  said  finding,  the  plaintiffs  are  entitled  to  recover,  the  case  is  to  be 
remitted  to  the  Superior  Court  for  the  assessment  of  damages;  other- 
wise, judgments  are  to  be  entered  for  the  defendant.  It  is  therefore 
to  be  considered  whether  it  appears  affirmatively  that  the  plaintiffs 
were  entitled  to  "recover. 

The  plaintiffs  apparently  were  present  at  the  display  of  fireworks 
as  voluntary  spectators,  and  were  of  ordinary  intelligence.  No  fact 
is  stated  in  the  report  to  show  the  contrary,  nor  has  any  suggestion  ; 

to  that  effect  been  made  in  the  argument.  The  plaintiffs  have  not 
rested  their  claims  at  all  upon  the  ground  that  they  were  merely  travel- 
ers upon  the  highway,  or  that  they  were  unaware  of  the  nature  and 
risk  of  the  display.  The  report  says :  "  A  considerable  number  of  per- 
sons were  attracted  to  said  square  by  said  meeting,  and  said  bombs  ')|| 
and  other  fireworks  which  were  being  exploded  there.  ...  A  portion 
of  the  center  of  said  square,  about  forty  by  sixty  feet,  was  roped  off 
by  the  police  of  said  Chelsea,  and  said  bombs  or  shells  were  fired  off 
within  the  space  so  inclosed,  and  no  spectators  were  allowed  to  be 
within  said  inclosure.  .  .  .  The  plaintiffs  were  lawfully  in  said  high- 
way at  the  time  of  the  explosion  of  said  mortar,  and  near  said  ropes, 
and  were  in  the  exercise  of  due  care." 

'  The  remainder  of  the  opinion,  dealing  with  the  question  of  negHgence,  is 
omitted.  —  Ed. 


SECT.   II.]  HOWLAND    V.   BLAKE   MANUFACTURING    CO.  487 

The  bombs  or  shells  are  described  in  the  report,  and  they  were  to 
be  thrown  from  mortars  into  the  air,  it  being  intended  that  they  should 
explode  in  the  air  atid  display  colored  lights.  They  were  apparently  a 
common  form  of  fireworks,  such  as  has  long  been  in  use. 

The  ground  on  which  the  plaintiiTs  place  their  several  cases  is,  that 
the  Pub.  Sts.  c.  102,  §  55,  did  not  authorize  the  mayor  and  aldermen 
of  Chelsea  to  license  the  firing  of  anything  but  rockets,  crackers,  squibs, 
or  serpents,  and  that  therefore  the  act  of  the  defendant  in  firing  bombs 
or  shells  was  unauthorized  and  unlawful.  It  is  not  contended  that 
it  was  at  the  time  supposed,  either  by  the  defendant  or  by  anybody 
else,  that  the  license  was  insufficient  to  warrant  the  display  which  was 
actually  made.  The  licensee  was  the  chairman  of  a  committee  which 
had  a  political  meeting  in  charge,  and  the  defendant  acted  at  the  re- 
quest of  the  committee,  and  was  directed  by  them  as  to  when  and  where 
to  fire  off  the  fireworks. 

Under  this  state  of  things  it  must  be  considered  that  the  plaintiffs 
were  content  to  abide  the  chance  of  personal  injury  not  caused  by 
negligence,  and  that  it  is  immaterial  whether  there  was  or  was  not  a 
valid  license  for  the  display.  If  an  ordinary  traveler  upon  the  high- 
way had  been  injured,  different  reasons  would  be  applicable.  Vos- 
burgh  V.  Moak,  1  Cush.  453.  Jenne  v.  Sutton,  14  Vroom,  257.  Con- 
radt  V.  Clauve,  93  Ind.  476.  But  a  voluntary  spectator,  who  is  present 
merely  for  the  purpose  of  witnessing  the  display,  must  be  held  to  con- 
sent to  it,  and  he  suffers  no  legal  wrong  if  accidentally  injured  without 
negligence  on  the  part  of  any  one,  although  the  show  was  unauthorized. 
He  takes  the  risk.    See  Pollock  on  Torts,  138-144. ^ 

In  the  opinion  of  a  majority  of  the  court,  the  entry  must  be. 

Judgments  for  the  defendant. 

Morton,  J.,  dissented. 


HOWLAND  V.   BLAKE  MANUFACTURING  CO. 
Supreme  Judicial  Court  of  Massachusetts,  1892. 

[Reported  156  Mass.  543.] 

Tort,  by  Alfred  H.  Howland  and  George  A.  Ellis,  copartners  doing 
business  as  Howland  and  Ellis,  for  libel. 

The  declaration  alleged  that  the  plaintiffs  were  civil  engineers  and 
contractors,  and  that  the  defendant  published,  circulated,  and  caused 
to  be  published  and  circulated,  a  false  and  malicious  libel  concerning 
the  plaintiffs,  a  copy  whereof  was  annexed,  wherel)y  the  plaintiffs  were 
greatly  damaged  in  their  business  as  well  as  in  their  reputation,  and 
especially  had  suffered  great  damage  and  loss  of  profits  on  contracts 

1  See  also  Johnson  v.  New  York,  186  N.  Y.  139.  —  Ed. 


488  SHINGLEMEYER   V.   WRIGHT.  [CHAP.  V. 

and  employment  in  their  business  as  civil  engineers  and  contractors 
for  the  building  and  construction  and  superintendence  of  the  con- 
struction of  water  works. 

Trial  in  the  Superior  Court  before  Blodqett,  J. 

John  G.  Berry,  called  as  a  witness  for  the  plaintiffs,  testified  that 
he  was  a  civil  engineer  in  the  employ  of  the  plaintiffs;  that  on  March 
15,  1889,  he  went  to  the  office  of  the  defendant,  and  there  saw  Foran, 
who  gave  him  a  copy  of  the  Maynard  Enterprise  extra,  saying,  "  Read 
it  at  your  leisure,  and  show  it  to  your  water  committee";  that  the  wit- 
ness had  told  Foran  that  he  had  friends  in  Marion,  Ohio,  who  were 
interested  in  the  water  works  which  were  to  be  put  in  there  by  the 
plaintiffs;  that  thereupon  Foran  gave  a  start-,  and  said,  "Hold  on  a 
minute,  I  have  got  something  to  show  you";  and  that  Foran  then  went 
to  his  desk,  got  out  the  paper,  and  handed  it  to  him. 

On  cross-examination,  the  witness  testified  that  he  went  there  with 
the  purpose  and  intention  of  getting  one  of  those  papers  if  he  could; 
and  that  he  did  not  tell  Foran  that  he  was  in  the  plaintiffs'  employ. "^ 

The  jury  returned  a  verdict  for  the  defendant;  and  the  plaintiffs 
alleged  exceptions. 

Knowlton,  J.  .  .  .  The  jury  were  instructed  that,  "if  the  defend- 
ant gave  a  copy  of  the  libel  to  Berry,  there  having  been  no  previous 
publication  by  the  defendant,  and  Berry  in  procuring  such  copy  acted 
as  the  agent  of  the  plaintift's,  and  at  their  request,  and  such  publica- 
tion was  procured  with  the  view  to  bringing  action,  the  publication 
was  pri\aleged."  This  was  in  accordance  with  \'iews  expressed  by 
English  judges,  and  was  sound  in  principle.  Rogers  ».  Clifton,  3  Bos. 
&  P.  587,  592.  Duke  of  Brunswick  c.  Harmer,  14  Q.  B.  185.  King 
V.  Waring,  5  Esp.  13.  Smith  v.  Wood,.  3  Camp.  323.  Odgers,  Libel 
and  Slander,  229.  If  the  defendant  is  guilty  of  no  wrong  against  the 
plamtift'  except  a  wrong  invited  and  procured  by  the  plaintift'  for  the 
purpose  of  making  it  the  foundation  of  an  action,  it  would  be  most 
unjust  that  the  procurer  of  the  wrongful  act  should  be  permitted  to 
profit  by  it. 

Exceptions  overruled. 


■     SHINGLEMEYER  v.   WRIGHT. 
Supreme  Court  of  Michigan,  1900.  , 

[Reported  124  Mich.  230.] 

This  is  a  suit  by  one  Katherina  Shinglemeyer  against  Oliver  A. 
Wright  by  capias  for  an  alleged  slander  claimed  to  have  been  uttered 

1  Only  so  much  of  the  evidence,  record,  and  opinion  as  discusses  the  question  of 
plaintiffs'  consent  is  given.  —  Ed. 


SECT,  II.]  SHINGLEMEYEE   V.   WRIGHT.  489 

by  defendant  to  one  Henry,  a  policeman,  upon  the  16th  of  July,  1898, 
and  for  a  false  imprisonment.^ 

Plaintiff  testified  that  .  .  .  she  went  to  [defendant's]  office  in  the 
Chamber  of  Commerce  Building;  that  Oliver  Wright  said,  "Did  you 
bring  my  wheel  back?"  and  that  she  said,  "  I  ain't  got  your  old  wheel"; 
and  he  said,  "Yes,  you  have  stolen  my  wheel,"  and  said  that  he 
could  prove  it.  At  the  time  of  this  conversation  there  was  no  one 
present  besides  plaintiff  and  the  defendant.  She  also  claims  that  he 
stated  that  he  would  have  a  warrant  out  for  her  if  she  did  not  leave  his 
office.  Thereupon  she  went  to  the  telephone,  and  called  up  the  cen- 
tral police  station,  and  asked  them  to  send  over  an  officer.  After  she 
had  called  up  the  police  station  she  left  the  office,  went  down  the  ele- 
vator, and  near  the  door  met  the  policeman  Henry.  She  brought  the 
policeman  back  to  Mr.  Wright's  office,  and  herself  stated  to  the 
policeman  that  Mr.  Wright  accused  her  of  stealing  his  wheel,  and  that 
she  wanted  to  see  whether  he  could  do  so.  The  policeman  went  into 
Mr.  Wright's  private  office. 

Thomas  Henry,  the  officer,  testified  that  when  he  entered  the  office 
he  asked  what  the  trouble  was;  that  the  plaintiff  said  first,  "He 
accuses  me  of  stealing  his  bicycle,  and  says  I  am  a  thief,  and  I  am  going 
to  make  him  prove  it";  that  the  defendant  said  Detectives  High  and 
Larkins  were  looking  for  her,  and  that  he  [defendant]  had  learned  that 
a  woman  had  checked  a  man's  wheel  from  Detroit  to  Toledo  by  the 
Lake  Shore  baggageman.^ 

Long,  J.  In  regard  to  the  statement  by  defendant  in  the  presence 
of  the  officer  Henry,  it  was  not  a  publication  for  which  the  law  gives  a 
remedy.  She  herself  solicited  the  statement,  and  sent  for  the  officer 
for  the  express  purpose  of  having  the  defendant  repeat  the  statement  in 
his  presence.  It  would  not  have  been  stated  to  him  except  by  her  invi- 
tation. She  might  have  left  the  respondent's  office.  She  waited  some 
time  for  the  officer  to  come,  and  then  left,  and,  meeting  the  officer  as 
she  emerged  from  the  building,  came  back  with  him  for  no  other  pur- 
pose than  to  ask  him  to  repeat  the  statement  in  his  presence.  In 
Cristman  v.  Cristman,  36  111.  App.  567,  plaintiff  was  suspected  of  an 
assault  with  intent  to  murder.  The  defendant  suspected  the  plaintiff, 
and  so  stated  to  an  officer.  Plaintiff  took  one  King  with  him,  and  went 
to  defendant's  house.  King  asked  her,  in  the  presence  of  plaintifT, 
if  she  had  any  idea  who  did  it,  to  which  defendant  replied :  "  There  is 
only  two  mean  enough  to  do  it,  and  Johnnie  is  one  of  them.  Johnnie 
is  the  only  one  that  would  do  it,  and  he  is  the  one  that  did  do  it." 
Held  that  plaintiff  could  not  recover.  Where  one  received  a  letter 
containing  libelous  statements,  and  himself  read  the  letter  to  others, 
held  that  he  could  not  recover.    S^dvis  v.  Miller,  96  Tenn.  94,  33  S.  W. 

1  Only  so  much  of  the  case  as  deals  with  tlie  alleged  slander  is  given.  —  Ed. 

2  In  this  statement  of  the  evidence  only  so  much  is  given  as  bears  on  the  alleged 
slander.  —  Ed. 


490  -      VOSBURG  V.    PUTNEY.  [CHAP.  V- 

921.  There  is  no  difference  in  principle  between  reading  a  letter  to 
another  and  soliciting  a  person  to  make  a  similar  verbal  statement. 
Where  one  sought  from  the  superintendent  of  a  railroad  company 
a  letter  of  recommendation  for  his  friend,  which  letter  was  given,  con- 
taining a  statement  that  the  person  had  left  the  service  of  the  company 
during  a  strike,  held  that  this  was  not  publishing  a  libel.  Railroad  Co. 
V.  Delaney,  52  S.  W.  151,  45  L.  R.  A.  600.  The  following  cases  sustain 
the  same  doctrine:  Bank  v.  Bader,  59  Minn.  329,  61  N.  \V.  328;  Heller 
r.  Howard,  11  111.  App.  554;  Fon\nlle  v.  McNease,  1  Dud.  (S.  C.)  303; 
King  v.  Waring,  5  Esp.  13;  Smith  v.  Wood,  3  Camp.  323;  Haynes  v. 
Leland,  29  Me.  233.  Plaintiff  repeatedly  testified  that  she  sent  for  the 
policeman  to  see  if  she  did  steal  his  wheel,  and  that  she  was  going  to 
make  him  prove  it.    The  maxim.  Volenti  non  fit  injuria,  applies. 


VOSBURG  V.   PUTNEY. 
Supreme  Court  of  Wisconsin,  1891. 

[Reported  80  Wis.  523.] 

The  action  was  brought  to  recover  damages  for  an  assault  and  bat- 
tery, alleged  to  have  been  committed  by  the  defendant  upon  the  plain- 
tiff on  February  20,  1889.  The  answer  is  a  general  denial.  At  the  date 
of  the  alleged  assault  the  plaintiff  was  a  little  more  than  fourteen  years 
of  age,  and  the  defendant  a  little  less  than  twelve  years  of  age. 

The  injury  complained  of  was  caused  by  a  kick  inflicted  by  de- 
fendant upon  the  leg  of  the  plaintiff,  a  little  below  the  knee.  The  trans- 
action occurred  in  a  schoolroom  in  Waukesha,  during  school  hours, 
both  parties  being  pupils  in  the  school. 

Lyon,  J.^  Had  the  parties  been  upon  the  playgrounds  of  the  school, 
engaged  in  the  usual  boyish  sports,  the  defendant  being  free  from 
malice,  wantonness,  or  negligence,  and  intending  no  harm  to  plaintiff 
in  what  he  did,  we  should  hesitate  to  hold  the  act  of  the  defendant 
unlawful,  or  that  he  could  be  held  liable  in  this  action.  Some  considera- 
tion is  due  to  the  implied  license  of  the  playgrounds.  But  it  appears 
that  the  injury  was  inflicted  in  the  school,  after  it  had  been  called  to 
order  by  the  teacher,  and  after  the  regular  exercises  of  the  school  had 
commenced.  Under  these  circumstances,  no  implied  license  to  do  the 
act  complained  of  existed,  and  such  act  was  a  violation  of  the  order 
and  decorum  of  the  school,  and  necessarily  unlawful.  Hence  we  are 
of  the  opinion  that,  under  the  cAddence  and  verdict,  the  action  may  be 
sustained. 

*  Part  only  of  the  opinion  is  given.  —  Ed. 


SECT.  II.]  MARKLEY   V.   WHITMAN.r  491 


//  MARKLEY  v.   WHITMAN. 

Supreme  Court  of  Michigan,  1893. 

,     [Reported  95  Mich.  236.] 

Long,  J.  Plaintiff  and  defendant  were  both  students  at  the  Buchan- 
nan  High  School.  On  February  7,  1890,  while  the  plaintiff  was  on  his 
way  home  from  school,  the  defendant  and  others  of  the  scholars  were 
engaged  in  what  is  called  a  "rush"  or  "horse  game."  The  practice 
of  the  game  is  to  find  some  one  in  advance,  when  the  others  form  in  a 
line,  each  one  in  the  rear  pushing  the  one  in  advance  of  him,  and  so 
on  through  the  line  until  the  one  to  be  "rushed,"  who  knows  notliing 
of  what  is  coming,  is  rushed  upon  by  the  one  in  his  rear,  and  pushed  or 
rushed.  On  the  day  in  question  the  plaintiff,  while  going  towards  home 
on  the  sidewalk,  was  to  be  rushed.  The  defendant  was  in  his  immediate 
rear,  and  engaged  in  the  game.  When  pushed,  he  rushed  upon  the 
plaintiff,  striking  him  with  his  hands  between  the  shoulders  with  such 
violence  that  the  plaintiff  was  thrown  nearly  to  the  ground.  Imme- 
diately thereafter  he  lost  his  voice  above  a  whisper,  and  has  never 
recovered  its  use.  His  neck  was  nearly  fractured,  and  for  several 
months  he  was  compelled  to  take  medical  treatment  in  Chicago.  It 
is  claimed  that  he  suffered  great  pain,  and  has  not  fully  recovered. 
This  action  was  brought  to  recover  for  the  injuries  thus  occasioned. 
On  the  trial  in  the  court  below,  the  plaintiff  had  verdict  and  judgment 
for  $2,500.     Defendant  brings  error. 

The  errors  relied  upon  relate  principally  to  the  charge  of  the  court. 
It  was  claimed  on  the  trial  in  the  court  below : 

1.  That  the  push  against  the  plaintiff  was  not  an  assault,  and 
therefore  not  actionable. 

2.  That  it  was  a  pure  accident. 

3.  That  it  was  not  a  dangerous  game,  and  the  results  which  fol- 
lowed from  the  push  could  not  have  been  anticipated. 

4.  That  the  defendant  only  put  himself  in  a  position  ready  to  be 
pushed  if  the  spirit  of  frolic  should  be  entered  into  by  those  behind 
him,  and  his  rush  upon  the  plaintiff  was  neither  in\'ited  nor  approved. 

5.  That  there  was  no  unlawful  intent  to  injure  the  plaintiff. 

It  is  insisted  that  the  court  below,  in  its  charge,  entirely  ignored  the 
claim  of  the  defendant  made  on  the  trial;  and  also  that  the  plaintiff 
was  one  of  the  school-fellows,  and  stood  in  a  different  position  to  the 
defendant  than  would  a  stranger.  The  court  instructed  the  jury 
substantially  that,  if  the  plaintiff  was  participating  in  the  play,  or  in 
any  way  contributed  to  the  injury,  he  could  not  recover;  that,  to 
entitle  the  plaintiff'  to  recover,  he  must  show  by  a  preponderance  of  evi- 
dence that  the  injury  was  occasioned  by  the  push  given  by  the  defend- 


492  MARKLEY   V.    WHITMAN.  [CHAP,  V. 

ant,  and  that  the  defendant  either  wilfully  pushed  the  plaintiff,  or 
was  voluntarily  engaged  in  the  game,  which  must  be  found  to  be  dan- 
gerous, and  one  reasonably  calculated  to  be  dangerous  to  innocent 
persons  lawfully  traveling  along  the  sidewalk  upon  which  the  play 
was  conducted.  The  court  below  further  instructed  the  jury  as  fol- 
lows: 

"If  the  game  in  question  was  a  dangerous  one  to  indulge  in  on  the 
street  and  at  the  time  in  question,  and  if  the  defendant  was  voluntarily 
engaged  in  such  play  at  the  time  of  the  accident,  and  if  the  plaintiff 
was  not  participating  in  such  sport,  and  was  not  guilty  of  conduct 
which  in  any  way  contributed  to  the  injury,  but,  on  the  contrary,  was 
lawfully  traveling  on  the  sidewalk,  and  in  the  exercise  of  reasonable 
care,  and  if  the  defendant,  while  so  playing,  pushed  the  plaintiff  and 
injured  him,  he  is  liable;  and  in  such  case  it  is  no  excuse  for  him  to 
say  that  he  himself  was  pushed  against  the  plaintiff  by  some  other  boy." 

This  charge  fully  protected  the  rights  of  the  defendant,  and  was  as 
favorable  to  him  as  the  facts  of  the  case  warranted.  In  fact,  on  the 
trial  it  was  little  in  dispute  that  the  injury  occurred  exactly  as  the 
plaintiff  claimed.  He  was  peacea])ly  walking  along  the  street,  and  had 
no  intimation  that  he  was  to  be  "rushed."  He  was  not  participating 
in  the  game,  and,  if  his  testimony  is  true,  never  had  taken  part  in  it, 
and  on  that  occasion  was  not  anticipating  that  he  was  the  victim 
selected  to  be  rushed.  It  was  an  assault  upon  him,  and  the  court  cor- 
rectly stated  the  rules  of  law  applicable  to  the  case;  at  least,  the  de- 
fendant had  no  reason  to  complain.  It  is  evident  that  the  defendant 
was  one  of  those  engaged  in  the  game,  which,  upon  a  bare  statement  of 
the  manner  in  which  it  is  to  be  played,  must  be  regarded  as  dangerous. 
He  voluntarily  engaged  in  it,  and  his  conduct  occasioned  the  injury. 
It  was  unlawful  to  "rush"  the  plaintiff  under  the  circumstances  shown, 
and  the  defendant  must  be  held  responsible  for  the  consequences  which 
followed.  It  may  be,  and  probably  is,  true  that  those  taking  part  in 
it  did  not  anticipate  the  injurious  effects  upon  the  plaintiff;  but  that 
does  not  lessen  the  plaintiff's  pain  and  suffering,  or  make  the  act  less 
unlawful.  The  plaintiff,  while  passing  along  the  street,  and  not  en- 
gaged in  the  sport,  had  the  same  right  to  be  protected  from  such  an 
assault  as  a  stranger  would  have  had,  and  the  assault  upon  him  was  as 
unlawful  as  it  would  have  been  upon  a  stranger. 

We  find  no  error  in  the  case,  and  the  judgment  must  be  affirmed, 
with  costs. 

Hooker,  C.  J.,  McGrath  and  Grant,  JJ.,  concurred.  Mont- 
gomery, J.,  did  not  sit.^ 

1  See  also  Fitzgerald  v.  Cavin,  110  Mass.  153;  Wartman  v.  Swindell,  54  N.  J.  L. 
589,  25  Atl.  35(3.  —  Ed. 


SECT.  II.]    OLLET  V.  PITTSBURG,  CINCINNATI,  CHICAGO,  ETC.,  RY.  CO.    493 


^ 


OLLET  V.   PITTSBURG,   CINCINNATI,   CHICAGO   &   ST. 

LOUIS  RAILWAY  CO. 


i/ 


Supreme  Court  of  Pennsylvania,  1902. 

[Reported  201  Pa.  361.] 


Trespass  for  an  alleged  unlawful  imprisonment. 

At  the  trial  the  court  entered  a  compulsory  nonsuit  which  it  sub- 
sequently refused  to  take  off,  Shafer,  J.,  filing  the  following  opinion: 

The  action  is  for  false  imprisonment.  The  plaintiff  was  a  boy 
seventeen  years  of  age,  and  while  endeavoring  to  climb  upon  a  freight 
train  of  the  defendant  company  fell  from  it.  The  wheel  ran  over  his 
foot,  crushing  the  front  part  of  it.  He  was  immediately  taken  to  a 
private  house,  the  only  one  in  the  neighborhood,  and  the  crew  of  the 
freight  train  on  which  he  was  injured  having  run  to  Carnegie,  a  dis- 
tance of  one  or  two  miles,  came  back  again  to  the  house  with  the 
engine,  and  finding  the  boy  in  the  house,  and  no  one  present  except  a 
young  woman  who  lived  there,  took  him  on  the  engine  to  Carnegie, 
where  the  company's  physician  was  in  attendance.  An  uncle  of  the 
boy  who  lived  in  Carnegie  was  also  at  the  station  when  the  boy  was 
brought  there,  and  upon  the  ad\ace  of  the  company's  doctor,  and  ac- 
companied by  the  uncle,  he  was  taken  to  the  West  Penn  Hpspital, 
where  his  foot  was  afterwards  amputated. 

At  the  time  of  the  accident  one  or  more  other  boys  were  present, 
and  one  of  them  had  gone  to  Carnegie  to  call  the  family  physician  of 
the  boy's  father,  and  another  had  gone  to  the  house  of  the  boy's  father 
to  call  him,  the  distance  to  each  being  a  mile  or  two,  and  the  roads 
being  very  muddy.  When  the  crew  of  the  train  got  to  the  house  they 
were  told  by  the  boy  that  his  family  physician  had  been  sent  for,  and 
that  he  did  not  want  to  go  the  hospital,  but  they  insisted  that  he 
should;  carried  him  out;  put  him  on  the  tender  of  the  engine.  This 
removal  of  the  boy  from  the  house  by  the  railroad  to  Carnegie,  and 
thence  to  the  hospital,  is  the  false  imprisonment  complained  of. 

That  the  crew  of  the  train,  in  doing  what  they  did,  were  endeavoring 
to  act  the  part  of  the  good  Samaritan  is  perfectly  plain,  and  we  do  not 
see  how  a  .jury  could  be  allowed  to  find  otherwise  from  the  evidence. 
The  circumstances  certainly  seemed  to  call  for  great  haste,  and  one 
who  endeavors  to  assist  his  neighbor  who  is  in  great  danger  and  distress 
is  certainly  not  liable  for  a  mistake  in  judgment;  nor  does  there  appear 
to  have  been  any  such  mistake  made  in  this  case. 

In  addition,  we  do  not  see  how  the  railroad  company  could  be  held 


494  '  MOHR   V.    WILLIAMS.  [CHAP.   V. 

liable  for  a  false  imprisonment  on  these  acts  of  its  employees,  which 
were  certainly  not  done  within  the  scope  of  their  employment,  which 
was  that  of  a  crew  of  a  freight  train. 

The  motion  to  take  ofl'  the  nonsuit  is  refused. 

Per  Curiam.  This  judgment  is  affirmed  on  the  opinion  of  the  court 
below  refusing  to  take  off  the  nonsuit. 


1 


l/ 


MOHR  V.  WILLIAMS. 
Supreme  Court  of  Minnesota,  1905. 

[Reported  95  Minn.  261.] 


Action  in  the  district  court  for  Ramsey  County  to  recover  $20,000 
damages  for  assault  and  battery  consisting  of  an  alleged  unauthorized 
surgical  operation  performed  by  defendant  upon  plaintiff's  ear.  The 
case  was  tried  before  Oliii  B.  Lewis,  J.,  and  a  jury,  which  rendered  a 
verdict  in  favor  of  plaintiff  for  $14,322.50.  From  separate  orders 
granting  a  motion  for  ja  new  trial  and  denying  a  motion  for  judgment, 
notwithstanding  the  verdict,  plaintiff  and  defendant  respectively  ap- 
pealed.   Orders  affirmed. 

Brown,  J.  Defendant  is  a  physician  and  surgeon  of  standing  and 
character,  making  disorders  of  the  ear  a  specialty,  and  having  an 
extensive  practice  in  the  city  of  St.  Paul.  He  was  consulted  by  plain- 
tiff, who  complained  to  him  of  trouble  with  her  right  ear,  and,  at  her 
request,  made  an  examination  of  that  organ  for  the  purpose  of  ascer- 
taining its  condition.  He  also  at  the  same  time  examined  her  left  ear, 
but,  owing  to  foreign  substances  therein,  was  unable  to  make  a  full 
and  complete  diagnosis  at  that  time.  The  examination  of  her  right 
ear  disclosed  a  large  perforation  in  the  lower  portion  of  the  drum 
membrane,  and  a  large  polyp  in  the  middle  ear,  which  indicated  that 
some  of  the  small  bones  of  the  middle  ear  (ossicles)  were  probably  dis- 
eased. He  informed  plaintiff'  of  the  result  of  his  examination,  and 
advised  an  operation  for  the  purpose  of  removing  the  polyp  and  dis- 
eased ossicles.  After  consultation  with  her  family  physician,  and  one 
or  two  further  consultations  with  defendant,  plaintiff  decided  to  sub- 
mit to  the  proposed  operation.  She  was  not  informed  that  her  left 
ear  was  in  any  way  diseased,  and  understood  that  the  necessity  for 
an  operation  applied  to  her  right  ear  only.  She  repaired  to  the  hospital, 
and  was  placed  under  the  influence  of  anaesthetics;  and,  after  being 
made  unconscious,  defendant  made  a  thorough  examination  of  her 
left  ear,  and  found  it  in  a  more  serious  c'ondition  than  her  right  one. 
A  small  perforation  was  discovered  high  up  in  the  drum  membrane, 


SECT.  II.]  MOHR    V.    WILLIAMS.  495 

hooded,  and  with  granulated  edges,  and  the  bone  of  the  inner  wall  of 
the  middle  ear  was  diseased  and  dead.  He  called  this  discovery  to  the 
attention  of  Dr.  Davis  —  plaintiff's  family  physician,  who  attended  the 
operation  at  her  request  —  who  also  examined  the  ear  and  confirmed 
defendant  in  his  diagnosis.  Defendant  also  further  examined  the  right 
ear,  and  found  its  condition  less  serious  than  expected,  and  finally  con- 
cluded that  the  left,  instead  of  the  right,  should  be  operated  upon, 
devoting  to  the  right  ear  other  treatment.  He  then  performed  the 
operation  of  ossiculectomy  on  plaintiff's  left  ear,  removing  a  portion 
of  the  drum  membrane,  and  scraping  away  the  diseased  portion  of  the 
inner  wall  of  the  ear.  The  operation  was  in  every  way  successful  and 
skillfully  performed.  It  is  claimed  by  plaintiff  that  the  operation 
greatly  impaired  her  hearing,  seriously  injured  her  person,  and,  not  hav- 
ing been  consented  to  by  her,  was  wrongful  and  unlawful,  constituting 
an  assault  and  battery;  and  she  brought  this  action  to  recover  damages 
therefor. 

The  trial  in  the  court  below  resulted  in  a  verdict  for  plaintiff  for 
$14,322.50.  Defendant  thereafter  moved  the  court  for  judgment  not- 
withstanding the  verdict,  on  the  ground  that,  on  the  evidence  pre- 
sented, plaintiff  was  not  entitled  to  recover,  or,  if  that  relief  was  denied, 
for  a  new  trial  on  the  ground,  among  others,  that  the  verdict  was  ex- 
cessive, appearing  to  have  been  given  under  the  influence  of  passi9n 
and  prejudice.^ 

"We  come  then  to  a  consideration  of  the  questions  presented  by 
defendant's  appeal  from  the  order  denying  his  motion  for  judgment 
notwithstanding  the  verdict.  It  is  contended  that  final  judgment 
should  be  ordered  in  his  favor  for  the  following  reasons:  (a)  That  it 
appears  from  the  evidence  received  on  the  trial  that  plaintiff  consented 
to  the  operation  on  her  left  ear.  (6)  If  the  court  shall  find  that  no  such 
consent  was  given,  that,  under  the  circumstances  disclosed  by  the 
record,  no  consent  was  necessary,  (c)  That,  under  the  facts  disclosed, 
an  action  for  assault  and  battery  will  not  lie,  it  appearing  conclusively, 
as  counsel  urge,  that  there  is  a  total  lack  of  evidence  showing  or  tend- 
ing to  show  malice  or  an  evil  intent  on  the  part  of  defendant,  or  that 
the  operation  was  negligently  performed. 

We  shall  consider  first  the  question  whether,  under  the  circumstances 
shown  in  the  record,  the  consent  of  plaintiff  to  the  operation  was 
necessary.  If,  under  the  particular  facts  of  this  case,  such  consent 
was  unnecessary,  no  recovery  can  be  had,  for  the  evidence  fairly  shows 
that  the  operation  complained  of  was  skillfully  performed  and  of  a 
generally  beneficial  nature.  But  if  the  consent  of  plaintiff  was  neces- 
sary, then  the  further  questions  presented  become  important.  This 
particular  question  is  new  in  this  State.  At  least,  no  case  has  been 
called  to  our  attention  wherein  it  has  been  discussed  or  dpcided,  and 
very  few  cases  are  cited  from  other  courts.     We  have  given  it  very 

*  So  much  of  the  opinion  as  discusses  the  question  of  a  new  trial  is  omitted.  —  Ed. 


490  MOIIR    V.    WILLIAMS.  [CHAP.  V. 

deliberate  consideration,  and  are  unable  to  concur  with  counsel  for 
defendant  in  their  contention  that  the  consent  of  plaintiff  was  un- 
necessary. 

The  evidence  tends  to  show  that,  upon  the  first  examination  of 
plaintiff,  defendant  pronounced  the  left  ear  in  good  condition,  and  that, 
at  the  time  plaintiff'  repaired  to  the  hospital  to  submit  to  the  operation 
on  her  right  ear,  she  was  under  the  impression  that  no  difficulty  ex- 
isted as  to  the  left.  In  fact,  she  testified  that  she  had  not  pre\nously 
experienced  any  trouble  with  that  organ.  It  cannot  be  doubted  that 
ordinarily  the  patient  must  be  consulted,  and  his  consent  given,  before 
a  physician  may  operate  upon  him. 

It  was  said  in  the  case  of  Pratt  v.  Davis,  37  Chicago  Leg.  News, 
213,  referred  to  and  commented  on  in  60  Cent.  Law  J.,  452:  "Under  a 
free  government,  at  least,  the  free  citizen's  first  and  greatest  right, 
which  underlies  all  others  —  the  right  to  the  inviolability  of  his  per- 
son; in  other  words,  the  right  to  himself  —  is  the  subject  of  universal 
acquiescence,  and  this'right  necessarily  forbids  a  physician  or  surgeon, 
however  skillful  or  eminent,  who  has  been  asked  to  examine,  diagnose, 
advise,  and  prescribe  (which  are  at  least  necessary  first  steps  in  treat- 
ment and  care),  to  violate,  without  permission,  the  bodily  integrity  of 
his  patient  by  a  major  or  capital  operation,  placing  him  under  an 
anjesthetic  for  that  purpose,  and  operating  upon  him  without  his 
consent  or  knowledge." 

1  Kinkead  Torts,  §  375,  states  the  general  rule  on  this  subject  as 
follows:  "The  patient  must  be  the  final  arbiter  as  to  whether  he  shall 
take  his  chances  with  the  operation,  or  take  his  chances  of  li^•ing  with- 
out it.  Such  is  the  natural  right  of  the  indi\'idual,  which  the  law 
recognizes  as  a  legal  right.  Consent,  therefore,  of  an  indi\'idual,  must 
be  either  expressly  or  impliedly  given  before  a  surgeon  may  have  the 
right  to  operate."  There  is  logic  in  the  principle  thus  stated,  for  in  all 
other  trades,  professions,  or  occupations  contracts  are  entered  into  by 
the  mutual  agreement  of  the  interested  parties,  and  are  required  to 
be  performed  in  accordance  with  their  letter  and  spirit.  No  reason 
occurs  to  us  why  the  same  rule  should  not  apply  between  physician  and 
patient.  If  the  physician  adAases  his  patient  to  submit  to  a  particular 
operation,  and  the  patient  weighs  the  dangers  and  risks  incident  to  its 
performance,  and  finally  consents,  he  thereby,  in  effect,  enters  into  a 
contract  authorizing  his  physician  to  operate  to  the  extent  of  the  con- 
sent given,  but  no  further. 

It  is  not,  however,  contended  by  defendant  that  under  ordinary  cir- 
cumstances consent  is  unnecessary,  but  that,  under  the  particular  cir- 
cumstances of  this  case,  consent  was  implied ;  that  it  was  an  emergency 
case,  such  as  to  authorize  the  operation  without  express  consent  or 
permission.  The  medical  profession  has  made  signal  progress  in  solv- 
ing the  problems  of  health  and  disease,  and  they  may  justly  point  with 
pride  to  the  advancements  made  in  supplementing  nature  and  correct- 


SECT.  II.]  MOHR   V.   WILLIAMS.  497 

ing  deformities,  and  relieving  pain  and  suffering.  The  physician  im- 
pHedly  contracts  that  he  possesses,  and  will  exercise  in  the  treatment 
of  patients,  skill  and  learning,  and  that  he  will  exercise  reasonable  care 
and  exert  his  best  judgment  to  bring  about  favorable  results.  The 
methods  of  treatment  are  committed  almost  exclusively  to  his  judg- 
ment, but  we  are  aware  of  no  rule  or  principle  of  law  which  would 
extend  to  him  free  license  respecting  surgical  operations.  Reasonable 
latitude  must,  however,  be  allowed  the  physician  in  a  particular  case; 
and  we  would  not  lay  down  any  rule  which  would  unreasonably  inter- 
fere with  the  exercise  of  his  discretion,  or  prevent  him  from  taking 
such  measures  as  his  judgment  dictated  for  the  welfare  of  the  patient 
in  a  case  of  emergency.  If  a  person  should  be  injured  to  the  extent 
of  rendering  him  unconscious,  and  his  injuries  were  of  such  a  nature 
as  to  require  prompt  surgical  attention,  a  physician  called  to  attend  him 
would  be  justified  in  applying  such  medical  or  surgical  treatment  as 
might  reasonably  be  necessary  for  the  preservation  of  his  life  or  limb, 
and  consent  on  the  part  of  the  injured  person  would  be  implied.  And 
again,  if,  in  the  course  of  an  operation  to  which  the  patient  consented, 
the  physician  should  discover  conditions  not  anticipated  before  the 
operation  was  commenced,  and  wliich,  if  not  removed,  would  endanger 
the  life  or  health  of  the  patient,  he  would,  though  no  express  consent 
was  obtained  or  given,  be  justified  in  extending  the  operation  to  remove 
and  overcome  them. 

But  such  is  not  the  case  at  bar.  The  diseased  condition  of  plaintiff's 
left  ear  was  not  discovered  in  the  course  of  an  operation  on  the  right 
which  was  authorized,  but  upon  an  independent  examination  of  that 
organ,  made  after  the  authorized  operation  was  found  unnecessary. 
Nor  is  the  e\ndence  such  as  to  justify  the  court  in  holding,  as  a  matter 
of  law,  that  it  was  such  an  affection  as  would  result  immediately  in 
the  serious  injury  of  plaintiff,  or  such  an  emergency  as  to  justify  pro- 
ceeding without  her  consent.  She  had  experienced  no  particular  dif- 
ficulty with  that  ear,  and  the  questions  as  to  when  its  diseased  condition 
would  become  alarming  or  fatal,  and  whether  there  was  an  immediate 
necessity  for  an  operation,  were,  under  the  evidence,  questions  of  fact 
for  the  jury. 

The  contention  of  defendant  that  the  operation  was  consented  to 
by  plaintiff  is  not  sustained  by  the  evidence.  At  least,  the  e\adence 
was  such  as  to  take  the  question  to  the  jury.  This  contention  is  based 
upon  the  fact  that  she  was  represented  on  the  occasion  in  question  by 
her  family  physician;  that  the  condition  of  her  left  ear  was  made 
known  to  him,  and  the  propriety  of  an  operation  thereon  suggested, 
to  which  he  made  no  objection.  It  is  urged  that  by  his  conduct  he 
assented  to  it,  and  that  plaintiff  was  bound  thereby.  It  is  not  claimed 
that  he  gave  his  express  consent.  It  is  not  disputed  but  that  the 
family  physician  of  plaintiff  was  present  on  the  occasion  of  the  opera- 
tion, and  at  her  request.    But  the  purpose  of  his  presence  was  not  that 


498  MOHR   V.    WILLIAMS.  [CHAP.   V. 

he  might  participate  in  the  operation,  nor  does  it  appear  that  -he  was 
authorized  to  consent  to  any  change  in  the  one  originally  proposed  to 
be  made.  Plaintiff  was  naturally  nervous  and  fearful  of  the  conse- 
quences of  being  placed  imder  the  influence  of  anaesthetics,  and  the 
presence  of  her  family  physician  was  requested  under  the  impression 
that  it  would  allay  and  calm  her  fears.  The  e\'idence  made  the  question 
one  of  fact  for  the  jury  to  determine. 

The  last  contention  of  defendant  is  that  the  act  complained  of  did 
not  amount  to  an  assault  and  battery.  This  is  based  upon  the  theory 
that,  as  plaintift''s  left  ear  was  in  fact  diseased,  in  a  condition  dangerous 
and  threatening  to  her  health,  the  operation  was  necessary,  and,  ha\nng 
been  skillfully  performed  at  a  time  when  plaintiff  had  requested  a  like 
operation  on  the  other  ear,  the  charge  of  assault  and  battery  cannot  be 
sustained;  that,  in  \new  of  these  conditions,  and  the  claim  that  there 
was  no  negligence  on  the  part  of  defendant,  and  an  entire  absence  of 
any  e\'idence  tending  to  show  an  e\i\  intent,  the  court  should  say,  as  a 
matter  of  law,  that  no  assault  and  battery  was  committed,  even  though 
she  did  not  consent  to  the  operation.  In  other  words,  that  the  absence 
of  a  showing  that  defendant  was  actuated  by  a  wrongful  intent,  or 
guilty  of  negligence,  relieves  the  act  of  defendant  from  the  charge  of 
an  unlawful  assault  and  battery. 

We  are  unable  to  reach  that  conclusion,  though  the  contention  is  not 
without  merit.  It  would  seem  to  follow  from  what  has  been  said  on 
the  other  features  of  the  case  that  the  act  of  defendant  amounted  at 
least  to  a  technical  assault  and  battery.  If  the  operation  was  performed 
without  plaintiff's  consent,  and  the  circumstances  were  not  such  as 
to  justify  its  performance  without,  it  was  wrongful;  and,  if  it  was 
wrongful,  it  was  unlawful.  As  remarked  in  1  Jaggard,  Torts,  437, 
every  person  has  a  right  to  complete  immunity  of  his  person  from 
physical  interference  of  others,  except  in  so  far  as  contact  may  be 
necessary  under  the  general  doctrine  of  pri\'ilege;  and  any  unlawful 
or  unauthorized  touching  of  the  person  of  another,  except  it  be  in  the 
spirit  of  pleasantry,  constitutes  an  assault  and  battery.  In  the  case  at 
bar,  as  we  have  already  seen,  the  question  whether  defendant's  act 
in  performing  the  operation  upon  plaintiff  was  authorized  was  a  ques- 
tion for  the  jury  to  determine.  If  it  was  unauthorized,  then  it  was, 
within  what  we  have  said,  unlawful.  It  was  a  violent  assault,  not  a 
mere  pleasantry;  and,  even  though  no  negligence  is  shown,  it  was 
wrongful  and  unlawful.  The  case  is  unlike  a  criminal  prosecution 
for  assault  and  battery,  for  there  an  unlawful  intent  must  be  shown. 
But  that  rule  does  not  apply  to  a  civil  action,  to  maintain  which  it  is 
sufficient  to  show  that  the  assault  complained  of  was  wrongful  and  un- 
lawful or  the  result  of  negligence.  1  Addison,  Torts,  689;  Lander  v. 
Seaver,  32  Vt.  114;   Vosburg  v.  Putney,  80  Wis.  523,  50  N.  W.  403. 

The  amount  of  plaintiff's  recovery,  if  she  is  entitled  to  recover  at 
all,  must  depend  upon  the  character  and  extent  of  the  injury  inflicted 


SECT.  II.]  BAKKEK    V.    WELSH.  499 

upon  her,  in  determining  which  the  nature  of  the  malady  intended  to 
be  healed  and  the  beneficial  nature  of  the  operation  should  be  taken 
into  consideration,  as  well  as  the  good  faith  of  the  defendant.^ 

Orders  affirmed. 


BAKKER  V.   WELSH. 
Supreme  Court  of  Michigan,  1906. 

[Reported  144  Mich.  632.] 

Moore,  J.  Stephen  Bakker  died  upon  the  operating  table  at  a 
hospital  in  Grand  Rapids,  while  defendant  Apted  was  administering 
to  him  chloroform  preparatory  to  the  removal  of  a  tumor  by  the  de- 
fendant Welsh.  The  plaintiff  is  the  father  of  the  deceased,  and,  after 
being  appointed  administrator  of  the  estate  of  deceased,  brought  this 
suit,  his  counsel  stating  upon  the  trial  that  his  claim  was  under  what 
is  known  by  the  lawyers  and  the  courts  as  the  "Death  Act."  The 
trial  judge  directed  a  verdict  in  favor  of  the  defendants.  The  case  is 
brought  here  by  wTit  of  error. 

Stephen  Bakker  was  seventeen  years  old.  He  lived  with  his  father  on  a 
farm.  He  was  a  large,  healthy-appearing  person.  He  had  a  tumor  upon 
his  left  ear  about  the  size  of  a  dove's  egg.  Some  time  before  his  death 
he  had  received  treatment,  and  the  tumor  nearly  disappeared;  but 
prior  to  the  middle  of  February,  1904,  it  reappeared,  and  he  came  to 
Grand  Rapids  to  consult  some  physician  about  it.  He  had  an  aunt 
about  sixty  years  old  and  two  adult  sisters  li^^ng  in  Grand  Rapids,  uith 
whom  he  went  to  the  office  of  the  defendant  Welsh,  who  was  a  special- 
ist and  had  practiced  medicine  and  surgery  for  a  long  time.  After  an  ex- 
amination he  was  told  it  would  be  necessary  to  have  a  microscopic 
examination  made  to  determine  the  character  of  the  growth,  and  he 
was  sent  to  Dr.  Williams,  another  specialist,  who  made  an  incision  and 
obtained  a  specimen  from  the  tumor,  and  young  Bakker  returned  to 
his  father's.  On  the  following  Saturday  or  Sunday  he  again  went  to  the 
office  of  Dr.  Welsh,  accompanied  by  at  least  one  of  his  sisters,  and  was 
informed  of  the  report  made  by  Dr.  Williams,  and  was  told  it  would  be 
best  to  have  the  tumor  removed  by  a  surgical  operation  at  the  hospital. 

The  testimony  is  somewhat  conflicting  as  to  what  was  said.  The 
sister  claims  Stephen  objected  to  taking  an  anesthetic,  and  was  told 
there  was  no  danger.  The  doctor  says  that  he  told  him  there  was  al- 
ways some  danger  in  taking  an  anaesthetic,  but  that  he  ad\'ised  him  to 
halve  the  operation  performed.  On  Tuesday  afternoon  Stephen,  with 
his  aunt  and  at  least  one  sister,  went  again  to  the  office  of  Dr.  Welsh, 

1  See  also  Pratt  v.  Davis,  224  111.  300,  79  N.  E.  562;  Schloendorff  v.  Society  of 
New  York  Hospital,  211  N.  Y.  12.5,  105  N.  E.  92.  —  Ed. 


500  BAKKER    V.    WELSH.  [ciIAP.  V. 

and  was  sent  from  there  to  the  hospital,  where  they  all  understood  an 
operation  should  be  performed  the  following  day.  In  the  meantime 
Dr.  Welsh  had  arranged  with  Dr.  Apted,  an  expert  in  the  administra- 
tion of  anaesthetics,  to  administer  the  chloroform.  '  A  careful  exami- 
nation of  the  heart  and  lungs  of  the  young  man  was  made.  They 
appeared  to  be  normal,  and  in  the  presence  of  the  hospital  nurse  and 
the  doctors,  with  the  usual  appliances  for  successful  operations  at 
hand,  young  Bakker  was  put  upon  the  table.  Dr.  Apted  began  to  ad- 
minister chloroform  by  means  of  the  mask  and  drop  method,  and  had 
administered  about  one-third  of  an  ounce,  taking  from  scAen  to  ten 
minutes  in  which  to  do  it,  and  Dr.  Welsh  was  just  about  to  commence 
the  operation,  when  suddenly  the  heart  of  the  patient  stopped  beat- 
ing. Every  means  known  to  the  profession  was  used  to  revive  the 
patient,  but  he  was  already  dead.  Tlie  record  shows  the  father  did  not 
know  an  operation  was  to  be  performed.  There  were  two  counts  in 
the  declaration.  Stripped  of  legal  verbiage,  the  first  count  stated  that 
Stephen  Bakker  was  a  minor  and  it  was  known  to  the  defendant  Welsh 
he  was  a  minor,  and  that  it  was  Dr.  Welsh's  duty  to  inform  the  father 
and  get  his  consent  before  entering  upon  this  operation.  The  second 
count  charges  what  is  known  as  malpractice  or  want  of  skill  in  the 
operation,  and  that  young  Bakker  died  by  reason  of  an  improper  ad- 
ministration of  an  anresthetic.  The  record,  instead  of  disclosing  want  of 
skill  in  the  operation,  shows  quite  the  contrary.  We  have  no  hesi- 
tancy in  saving  the  trial  judge  was  quite  right  on  so  saying  when  he 
directed  a  verdict. 

We  then  come  to  the  question:  Are  defendants  Hable  in  this  action 
because  they  engaged  in  this  operation  without  obtaining  the  consent 
of  the  father?  Counsel  for  the  plaintiff  are  very  frank  with  the  court, 
and  say  in  their  brief: 

"We  are  unable  to  aid  the  court  by  reference  to  any  decisions  in 
point.  We  have  devoted  much  time  and  research  to  this  interesting 
question,  but  have  been  unable  to  find  any  decisions  of  a  higher  court 
either  supporting  or  opposing  the  plaintiff's  contention,  and  we  will 
therefore  have  to  be  content  by  calling  the  court's  attention  to  such 
general  reasoning  as  leads  us  to  take  the  \'iew  herein  contended  for." 

They  then  argue  at  length,  and  with  a  good  deal  of  force,  that,  as 
the  father  is  the  natural  guardian  of  the  child,  and  is  entitled  to  his 
custody  and  his  ser\aces,  he  cannot  be  deprived  of  them  without  his 
consent.     We  quote: 

"We  contend  that  it  is  wrong  in  every  sense,  except  in  cases  of 
emergences  for  a  physician  and  surgeon  to  enter  upon  a  dangerous 
operation,  or,  as  in  this  case,  the  administration  of  an  ansesthetic,  con- 
ceded to  be  always  accompanied  with  danger  that  death  may  result, 
without  the  knowledge  and  consent  of  the  parent  or  guardian.  It  is 
against  public  policy  and  the  sacred  rights  we  have  in  our  children  that 
surgeons  should  take  them  in  charge  without  our  knowledge  and  send 


SECT.  III.]  CAMPBELL    V.    RACE.  501 

to  US  a  corpse  as  the  first  notice  or  intimation  of  their  relation  to  the 


case." 


On  the  part  of  defendants  it  is  contended: 

1.  Consent  of  the  father  was  unnecessary. 

2.  The  lack  of  consent  was  not  the  cause  of  the  boy's  death,  hence 
not  actionable. 

3.  That  if  it  were,  the  action  does  not  sur\ave  under  the  death  act. 

4.  That  the  action,  if  any,  is  in  thfe  father,  not  in  the  administrator. 
We  do  not  think  it  necessary  to  a  disposition  of  the  case  to  decide 

all  of  the  defenses  interposed  by  the  defendant.  The  record  shows  a 
young  fellow  almost  grown  into  manhood,  who  has  been  for  a  consid- 
erable period  of  time,  while  living  with  his  father,  afflicted  with  a 
tumor.  He  has  attempted,  while  at  home,  to  have  it  removed  by  ab- 
sorption. It  does  disappear,  but  after  a  time  it  reappears.  He  goes  up 
to  a  large  city,  and  with  an  aunt  and  two  sisters,  all  adults,  submits  to 
examination,  receives  some  ad\nce,  and  goes  back  to  his  father  with 
an  agreement  to  return  later  to  receive  the  report  of  the  expert  who  is 
to  make  the  microscopic  examination.  He  returns  accordingly,  and, 
with  at  least  some  of  his  adult  relatives,  arranges  to  have  a  surgical 
operation  of  a  not  very  dangerous  character  performed.  Preparations 
are  made  for  its  performance.  There  is  nothing  in  the  record  to  indi- 
cate that,  if  the  consent  of  the  father  had  been  asked,  it  would  not 
have  been  freely  given.  There  is  nothing  in  the  record  to  indicate  to 
the  doctors,  before  entering  upon  the  operation,  that  the  father  did 
not  approve  of  his  son's  going  with  his  aunt  and  adult  sisters,  and  con- 
sulting a  physician  as  to  his  ailment,  and  following  his  advice.  We 
think  it  would  be  altogether  too  harsh  a  rule  to  say  that,  under  the 
circumstances  disclosed  by  this  record,  in  a  suit  under  the  statute 
declared  upon,  the  defendants  should  be  held  liable  because  they  did 
not  obtain  the  consent  of  the  father  to  the  administration  of  the 
anaesthetic. 

Judgment  is  affirmed 
McAlvay,  Grant,  Ostrander,  and  Hooker,  JJ.,  concurred. 


SECTION    III. 

Privilege  to  Act. 

CAMPBELL  V.   RACE. 
Supreme  Judicial  Court  of  Massachusetts,  1852. 

[Reported  7  Cush.  408.] 

This  was  an  action  of  trespass  for  breaking  and  entering  the  plain- 
tiff's close  in  the  town  of  Mount  Washington,  and  was  tried  in  the 
court  of  common  pleas,  before  Byington,  J.     The  defendant  pleaded 


502  CAMPBELL    V.   RACE.  [CHAP.  V. 

the  general  issue,  and  specified  in  defense  a  right  of  way  of  necessity, 
resulting  from  the  impassable  state  of  the  adjoining  highway,  by  ob- 
structions with  snow. 

The  defendant  introduced  CAndence  that  at  the  time  when  the  tres- 
pass was  alleged  to  have  been  committed  he  was  traveling  with  his 
team  on  a  highway  running  east  and  west,  which  led  to  and  intersected 
a  highway  running  north  and  south,  which  latter  highway  led  to  and 
intersected  another  highway,  on  which  the  defendant  had  occasion  to  go 
with  his  team;  and  the  usual,  proper,  and  only  mode  of  getting  on  which, 
by  a  highway,  was  by  passing  over  the  two  highways  first  named, 
when  they  were  in  a  condition  fit  for  travel;  but  at  the  time  of  the 
alleged  trespass,  they  were  both  obstructed,  and  rendered  impassable 
by  snow-drifts;  because  of  which  obstructions,  the  defendant  turned 
out  of  the  first  highway  with  his  team,  at  a  place  where  it  was  rendered 
impassable  as  aforesaid,  and  passed  over  the  adjoining  fields  of  the 
plaintiff,  doing  no  unnecessary  damage,  and  returned  into  the  second 
highway,  as  soon  as  he  had  passed  the  obstructions  which  rendered 
both  impassable.  And  he  contended,  that  the  highways  being  thus 
rendered  impassable,  he  had  a  way  of  necessity  over  the  plaintiff's  ad- 
joining fields,  or  that  his  so  passing  was  excusable,  and  not  a  trespass. 

But  the  judge  ruled,  that  these  facts  constituted  no  defense  to  the 
action;  and  a  verdict  having  been  returned  accordingly  for  the  plain- 
tiff, the  defendant  alleged  exceptions. 

BiGELOW,  J.  It  is  not  controverted  by  the  counsel  for  the  plaintiff, 
that  the  rule  of  law  is  well  settled  in  England,  that  where  a  highway  be- 
comes obstructed  and  impassable  from  temporary  causes,  a  traveler 
has  a  right  to  go  extra  viam  upon  adjoining  lands,  without  being  guilty 
of  trespass.  The  rule  is  so  laid  down  in  the  elementary  books.  2  Bl. 
Com.,  36;  Woolrych  on  Ways,  50,  51 ;  3  Cruise  Dig.,  89;  Wellbeloved  on 
Ways,  38;  and  it  is  fully  supported  by  the  adjudged  cases.  Henn's 
Case,  W.  Jones,  296;    3  Salk.,  182;    1  Saund.,  323,  note  3;    Absor  v. 

French,  2  Show.  28;    Young  v.  ,  1  Ld.  Raym.  725;    Taylor  v. 

Whitehead,  2  Doug.  745;  Bullard  v.  Harrison,  4"^^!.  &  S.  387,  393. 
Such  being  the  admitted  rule  of  law,  as  settled  by  the  English  authori- 
ties, it  was  urged  in  behalf  of  the  plaintiff  in  the  present  case,  that  it 
had  ne^■er  been  recognized  or  sustained  by  American  authors  or  cases. 
But  we  do  not  find  such  to  be  the  fact.  On  the  contrary,  Mr.  Dane, 
whose  great  learning  and  familiar  acquaintance  with  the  principles  of 
the  common  law,  and  their  practical  application  at  an  early  period  in 
this  commonwealth,  entitle  his  opinion  to  very  great  weight,  adopts 
the  rule,  as  declared  in  the  leading  case  of  Taylor  v.  Whitehead,  ubi 
supra,  which  he  says  "is  the  latest  on  the  point,  and  settles  the  law." 
3  Dane  Ab.,258.  And  so  Chancellor  Kent  states  the  rule.  3  Kent  Com., 
424.  We  are  not  aware  of  any  case  in  which  the  question  has  been  dis- 
tinctly raised  and  adjudicated  in  this  country;  but  there  are  several 
decisions  in  New  York,  in  which  the  rule  has  been  incidentally  recog- 


SECT.  III.]  CAMPBELL   V.   RACE.  503 

nized  and  treated  as  well-settled  law.  Holmes  v.  Seely,  19  Wend.  507; 
Williams  v.  Safford,  7  Barb.  309;  Newkirk  v.  Sabler,  9  Barb.  652, 
These  authorities  would  seem  to  be  quite  sufficient  to  justify  us  in  the 
recognition  of  the  rule.  But  the  rule  itself  is  founded  on  the  established 
principles  of  the  common  law,  and  is  in  accordance  with  the  fixed  and 
uniform  usage  of  the  community.  Indeed,  one  of  the  strongest  argu- 
ments in  support  of  it  is,  that  it  has  always  been  practiced  upon  and 
acquiesced  in,  without  objection,  throughout  the  New  England  States. 
This  accounts  satisfactorily  for  the  absence  of  any  adjudication  upon 
the  question,  in  our  courts,  and  is  a  sufficient  answer  to  the  objection 
upon  this  ground,  which  was  urged  upon  us  by  the  learned  counsel  for 
the  plaintiff.  When  a  right  has  been  long  claimed  and  exercised,  with- 
out denial  or  objection,  a  strong  presumption  is,  raised,  that  the  right 
is  well  founded. 

The  plaintiff's  counsel  is  under  a  misapprehension  in  supposing  that 
the  authorities  in  support  of  the  rule  rest  upon  any  peculiar  or  excep- 
tional principle  of  law.  They  are  based  upon  the  familiar  and  well- 
settled  doctrine,  that  to  justify  or  excuse  an  alleged  trespass,  inevitable 
necessity  or  accident  must  be  shown.  If  a  traveler  in  a  highway,  by 
unexpected  and  unforeseen  occurrences,  such  as  a  sudden  flood,  heavy 
drifts  of  snow,  or  the  falling  of  a  tree,  is  shut  out  from  the  traveled 
paths,  so  that  he  cannot  reach  his  destination,  without  passing  upon 
adjacent  lands,  he  is  certainly  under  a  necessity  so  to  do.  It  is  essential 
to  the  act  to  be  done,  without  which  it  cannot  be  accomplished.  Serious 
inconveniences,  to  say  the  least,  would  follow,  especially  in  a  climate 
like  our  own,  if  this  right  were  denied  to  those  who  have  occasion  to 
pass  over  the  public  ways.  Not  only  would  intercourse  and  business 
be  sometimes  suspended,  but  life  itself  would  be  endangered.  In  hilly 
and  mountainous  regions,  as  well  as  in  exposed  places  near  the  sea 
coast,  severe  and  unforeseen  storms  not  unfrequently  overtake  the 
traveler,  and  render  highways  suddenly  impassable,  co  that  to  advance 
or  retreat  by  the  ordinary  path,  is  alike  impossible.  In  such  cases,  the 
only  escape  is,  by  turning  out  of  the  usually  traveled  way,  and  seeking 
an  outlet  over  the  fields  adjoining  the  highway.  If  a  necessity  is  not 
created,  under  such  circumstances,  sufficient  to  justify  or  excuse  a 
traveler,  it  is  difficult  to  imagine  a  case  which  would  come  within  the 
admitted  rule  of  law.  To  hold  a  party  guilty  of  a  wrongful  invasion  of 
another's  rights,  for  passing  over  land  adjacent  to  the  highway,  under 
the  pressure  of  such  a  necessity,  would  be  pushing  indixndual  rights  of 
property  to  an  unreasonable  extent,  and  giving  them  a  protection 
beyond  that  which  finds  a  sanction  in  the  rules  of  law.  Such  a  tem- 
porary and  unavoidable  use  of  private  property,  must  be  regarded  as 
one  of  those  incidental  burdens  to  which  all  property  in  a  civilized 
community  is  subject.  In  fact,  the  rule  is  sometimes  justified  upon  the 
ground  of  public  convenience  and  necessity.  Highways  being  estab- 
lished for  public  service,  and  for  the  use  and  benefit  of  the  whole  com- 


504  CAMPBELL    V.   RACE.  [CHAP.  V. 

munity,  a  due  regard  for  the  welfare  of  all  requires,  that  when  tempo- 
rarily obstructed,  the  right  of  travel  should  not  be  interrupted.  In 
the  words  of  Lord  Mansfield,  "it  is  for  the  general  good  that  people 
should  be  entitled  to  pass  in  another  line."  It  is  a  maxim  of  the  com- 
mon law,  that  where  public  convenience  and  necessity  come  in  conflict 
with  private  right,  the  latter  must  yield  to  the  former.  A  person  trav- 
eling on  a  highway,  is  in  the  exercise  of  a  public,  and  not  a  private 
right.  If  he  is  compelled,  by  impassable  obstructions,  to  leave  the  way, 
and  go  upon  adjoining  lands,  he  is  still  in  the  exercise  of  the  same  right. 
The  rule  does  not,  therefore,  violate  the  principle  that  indi^^dual  con- 
venience must  always  be  held  subordinate  to  private  rights,  but  clearly 
falls  within  that  maxim,  jvhich  makes  public  convenience  and  necessity 
paramount. 

It  was  urged  in  argument  that  the  effect  of  establishing  this  rule  of 
law  would  be  to  appropriate  private  property  to  public  use  without 
pro\ading  any  means  of  compensation  to  the  owner.  If  such  an  acci- 
dental, occasional,  and  temporary  use  of  land  can  be  regarded  as  an 
appropriation  of  private  property  to  a  public  use,  entitling  the  owner  to 
compensation,  which  may  well  be  doubted,  still  the  decisive  answer  to 
this  objection  is  quite  obvious.  The  right  to  go  cvtra  viam,  in  case  of 
temporary  and  impassable  obstructions,  being  one  of  the  legal  inci- 
dents or  consequences  which  attaches  to  a  highway  through  private 
property,  it  must  be  assumed,  that  the  right  to  the  use  of  land  adjoin- 
ing the  road  was  taken  into  consideration  and  proper  allowance  made 
therefor,  when  the  land  was  originally  appropriated  for  the  highway, 
and  that  the  damages  were  then  estimated  and  fixed,  for  the  private 
injury  which  might  thereby  be  occasioned. 

,  It  was  also  suggested,  that  the  statutes  of  the  commonwealth,  im- 
posing the  duty  on  towns  to  keep  public  ways  in  repair,  and  rendering 
them  liable  for  damages  occasioned  by  defects  therein,  furnish  ample 
remedies  in  cases  of  obstructions,  and  do  away  with  the  necessity  of 
establishing  the  rule  of  the  common  law  in  this  commonwealth,  which 
gives  the  right  in  such  cases  to  pass  over  adjacent  lands.  But  this  is 
not  so.  Towns  are  not  liable  for  damages  in  those  cases  to  which  this 
rule  of  the  common  law  would  most  frequently  be  applicable  —  of 
obstructions,*  occasioned  by  sudden  and  recent  causes,  which  have  not 
existed  for  the  space  of  twenty -four  hours,  and  of  which  the  towns  have 
had  no  notice.  Besides,  the  statute  liability  of  towns  does  not  extend 
to  damages  such  as  would  ordinarily  arise  from  the  total  obstruction  of 
a  highway,  being  expressly  confined  to  cases  of  bodily  injuries  and 
damages  to  property.  St.  1850,  c.  5;  Canning  r.  WilHamstown,  1  Cush. 
451;  Harwood  v.  Lowell,  4  Cush.  310;  Brailey  v.  Southborough,  6 
Cush.   141. 

From  what  has  already  been  said,  the  limitations  and  restrictions 
of  the  right  to  go  upon  adjacent  lands  in  case  of  obstructions  in  the 
highway  can  be  readily  inferred.    Having  its  origin  in  necessity,  it  must 


SECT.  III.]  CAMPBELL    V.    RACE.  505 

be  limited  by  that  necessity;  cessante  ratione,  cessat  ipsa  lex.  Such  a 
right  is  not  to  be  exercised  from  convenience  merely,  nor  when,  by  the 
exercise  of  due  care,  after  notice  of  obstructions,  other  ways  may  be 
selected  and  the  obstructions  avoided.  But  it  is  to  be  confined  to  those 
cases  of  inevitable  necessity  or  unavoidable  accident,  arising  from 
sudden  and  recent  causes  which  have  occasioned  temporary  and  impas- 
sable obstructions  in  the  highway.  What  shall  constitute  such  inevita- 
ble necessity  or  unavoidable  accident,  must  depend  upon  the  various 
circumstances  attending  each  particular  case.  The  nature  of  the  ob- 
struction in  the  road,  the  length  of  time  during  which  it  has  existed, 
the  vicinity  or  distance  of  other  public  ways,  the  exigencies  of  the 
traveler,  are  some  of  the  many  considerations  which  would  enter  into 
the  inquiry,  and  upon  which  it  is  the  exclusive  province  of  the  jury  to 
pass,  in  order  to  determine  whether  any  necessity  really  existed,  which 
would  justify  or  excuse  the  traveler.  In  the  case  at  bar,  this  question 
was  wholly  withdrawn  from  the  consideration  of  the  jury,  by  the  rul- 
ing of  the  court.  It  will  therefore  be  necessary  to  send  the  case  to  a 
new  trial  in  the  court  of  common  pleas. 

Exceptions  sustained. 


Bacon,  Maxims,  reg.  5.  If  a  man  steal  viands  to  satisfy  his  present 
hunger,  this  is  no  felony  nor  larceny.  So  if  divers  be  in  danger  of 
drowning  by  the  casting  away  of  some  boat  or  bark,  and  one  of  them 
get  to  some  plank,  or  on  the  boat  side  to  keep  himself  above  water, 
and  another  to  save  his  life  thrust  him  from  it,  whereby  he  is  drowned, 
this  is  neither  se  defendendo  nor  b}-  misadventure,  but  justifiable.  So 
if  diver's  felons  be  in  a  gaol,  and  the  gaol  by  casualty  is  set  on  fire, 
whereby  the  prisoners  get  forth,  this  is  no  escape,  nor  breaking  of 
prison.  So  upon  the  statute  that  ever}'  merchant  that  setteth  his 
merchandise  on  land  without  satisfying  the  customer  or  agreeing  for 
it  (which  agreement  is  construed  to  be  in  certainty),  shall  forfeit  his 
merchandise  ;  and  it  is  so  that  by  tempest  a  great  quantity  of  the 
merchandise  is  cast  overboard,  whereby  the  merchant  agrees  with 
the  customer  by  estimation,  which  falleth  out  short  of  the  truth  ;  yet 
the  over  quantity  is  not  forfeited,  b}'  reason  of  the  necessit}* ;  where 
note  that  necessity  dispenseth  with  the  direct  letter  of  a  statute  law. 


508  REGINA   V.   DUDLEY.  '  [CHAP.  V, 


REGINA   V.   DUDLEY. 
'  ,  Queen's  Bench  Division.     1884. 

{Reported  15  Cox  C.  C.  624,  U  Q.  B.  D.  273.] 

Lord  Coleridge,  C.  J.^  The  two  prisoners,  Thomas  Dudley  and 
Edwin  Stephens,  were  indicted  for  the  murder  of  Richard  Parker  on 
the  high  seas  on  tlie  25th  day  of  July  in  tlie  present  year.  They  were 
tried  before  my  brotlier  Huddleston  at  Exeter  on  the  Gth  day  of 
November,  and  under  the  direction  of  m}'  learned  brother,  the  jury 
returned  a  special  verdict,  the  legal  etfect  of  which  has  been  argued 
before  us,  and  on  which  we  are  now  to  pronounce  judgment.  The 
special  verdict  is  as  follows.  [TAe  learned  judge  read  the  special 
verdict. 1  From  these  facts,  stated  with  the  cold  precision  of  a  special 
verdict,  it  appears  sufficiently  that  the  prisoners  were  subject  to  ter- 
rible temptation  and  to  sufferings  which  might  break  down  the  bodil}- 
power  of  the  strongest  man  and  try  the  conscience  of  the  best.  Other 
details  yet  more  harrowing,  facts  still  more  loathsome  and  appalling, 
were  presented  to  tlie  jury,  and  are  to  be  found  recorded  in  my  learned 
brother's  notes  ;  but  nevertheless  this  is  clear,  —  that  the  prisoners 
put  to  death  a  weak  and  unoffending  boy  upon  the  chance  of  preserv- 
ing their  own  lives  by  feeding  upon  his  flesh  and  blood  after  he  was 
killed,  and  with  a  certainty  of  depriving  him  of  any  possible  chance 
of  survival.  The  verdict  finds  in  terms  that  "  if  the  men  had  not  fed 
upon  the  bod}'  of  the  boy,  they  would  probabl}-  not  have  survived," 
and  that  "  the  boy,  being  in  a  much  weaker  condition,  was  likely  to 
have  died  before  them."  They  might  possil)!}'  have  been  picked  up 
next  day  by  a  passing  ship  :  they  might  possibly  not  have  been  picked 
u[)  at  all ;  in  either  case  it  is  obvious  that  the  killing  of  the  bov  would 
have  been  an  unnecessary  and  profitless  act.  It  is  found  b}'  the  ver- 
dict that  the  boy  was  incapable  of  resistance,  and,  in  fact,  made  none  ; 
and  it  is  not  even  suggested  that  his  death  was  due  to  an}'  violence  on 
his  part  attem[)ted  against,  or  even  so  mucli  as  feared  by,  them  who 
killed  him.  Under  these  circumstances  the  jury  say  thev  are  ignorant 
whethcn-  those  who  killed  him  were  guilty  of  murder,  and  have  referred 
it  to  this  court  to  say  what  is  the  legal  consequence  which  follows 
from  the  facts  which  tlioy  liave  found.  There  remains  to  be  consid- 
ered the  real  question  in  the  case,  whether  killing,  under  the  circum- 
stances set  forth  in  the  verdict,  be  or  be  not  murder.  The  contention 
that  it  could  be  auvthing  else  was  to  the  minds  of  us  all  both  new  and 
strange ;  and  we  stopped  the  Attorney-General  in  his  negative  argu- 
ment that  we  might  hear  what  could  be  said  in  support  of  a  proposi- 
tion which  appeared  to  us  to  be  at  once  dangerous,  immoral,  and 
opposed   to  all  legal   principle  and  analogy.     All,  no  doubt,  that  can 

^  Part  of  the  opinion  only  is  given. 


SECT.  III.]  REGINA    V.   DUDLEY.  507 

be  said  has  been  urged  before  us,  and  we  ai'e  now  to  consider  and 
determine  wiiat  it  amounts  to.  First,  it  is  said  that  it  follows,  from 
various  definitions  of  murder  in  books  of  authority — which  definitions 
imph',  if  they  do  not  state,  the  doctrhie  —  thaty  in  order  to  save  voiir 
own  life  you  may  lawfully  take  away  the  life  of  another,  when  that 
other  is  neither  attempting  nor  threatening  yours,  nor  is  guilt}'  of  any 
illegal  act  whatever  towards  you  or  any  one  else.  But  if  these  defini- 
tions be  looked  at,  they  will  not  be  found  to  sustain  the  contention. 
The  earliest  in  point  of  date  is  the  passage  cited  to  us  from  Bracton, 
who  wrote  in  the  reign  of  Henry  III.  It  was  at  one  time  the  fashion 
to  discredit  Bracton,  as  Mr.  Reeves  tells  us,  because  he  was  supposed 
to  mingle  too  much  of  the  canonist  and  civilian  with  the  common 
lawyer.  There  is  now  no  such  feeling ;  but  the  passage  upon  homi- 
cide, on  which  reliance  is  placed,  is  a  remarkable  example  of  the  kind 
of  writing  which  may  explain  it.  Sin  and  crime  are  spoken  of  as 
apparently  equally  illegal ;  and  the  crime  of  murder,  it  is  expressly 
declared,  ma}'  be  committed  Ihigiia  vel  facto ;  so  that  a  man  like 
Hero,  "  done  to  death  b}'  slanderous  tongues,"  would,  it  seems,  in  the 
opinion  of  Bracton,  be  a  person  in  respect  of  whom  might  be  grounded 
a  legal  indictment  for  murder.  But  in  the  very  jjassage  as  to  necessity 
on  which  reliance  has  been  placed,  it  is  clear  that  Bracton  is  speaking 
of  necessit}'  in  the  ordinary'  sense,  ■ —  the  repelling  by  violence,  vio- 
lence justified  so  far  as  it  was  necessary  for  the  object,  anv  illegal 
violence  used  towards  one's  self  If,  says  Bracton  (Lib.  iii.  Art.  De 
Corona,  cap.  4,  fol.  120),  the  necessity  be  emtahlUs  et  ecddere  posset 
absque  occisione,  tunc  erit  reus  homicidU,  —  words  which  show  clearl}' 
that  he  is  thinking  of  physical  danger,  from  which  escape  ma\-  be  pos- 
sible, and  that  inevitabilis  necessitas,  of  which  he  speaks  as  justifying 
homicide,  is  a  necessity  of  the  same  nature.  It  is,  if  possible,  yet 
clearer  that  the  doctrine  contended  for  receives  no  support  from  the 
great  authority  of  Lord  Hale.  It  is  plain  that  in  his  view  the  necessity 
which  justifies  homicide  is  that  only  which  has  always  been,  and  is 
now,  considered  a  justification.  "In  all  these  cases  of  homicide  bj' 
necessit}',"  savs  he,  '•  as  in  pursuit  of  a  felon,  in  killing  him  that 
assaults  to  rob,  or  comes  to  burn  or  break  a  house,  or  the  like,  which 
are  in  themselves  no  felony"  (1  Hale  P.  C.  491).  Again,  he  says 
tliat  the  necessity  which  justifies  homicide  is  of  two  kinds  :  "  (1)  That 
necessitv  which  is  of  a  private  nature  ;  (2)  That  necessity  which  re- 
lates to  the  public  justice  and  safety.  The  former  is  that  necessitv 
which  obligeth  a  man^  to  his  own  defence  and  safeguard;  and  this 
takes  in  these  inquiries  :  (1)  What  may  be  done  for  the  safeguard  of  a 
man's  own  life,"  —  and  then  follow  three  other  heads  not  necessary  to 
pursue.  Then  Lord  Hale  proceeds  :  "  (1 )  As  touching  the  first  of 
these,  namely,  homicide  in  defence  of  a  man's  own  life,  which  is  usuallv 
styled  se  defendendo"'  (1  Hale  P.  C.  47.S).  It  is  not  possible  to  use 
words  more  clear  to  show  that  Lord  Hale  regarded  tlie  private  noces- 
sitj  which  justified,  and  alone  justified,  the  taking  the  life  of  another 


508  REGINA    V.    DUDLEY.  [CHAP.  V. 

for  the  safeguard  of  one's  own  to  be  what  is  common!}'  called  self- 
defence.  But  if  this  could  be  even  doubtful  upon  Lord  Hale's  words, 
Lord  Hale  himself  has  made  it  clear ;  for  in  the  chapter  in  which  he 
deals  with  the  exemption  created  by  compulsion  or  necessity,  he  thus 
expresses  himself:  "  If  a  man  be  desperately  assaulted  and  in  peril  of 
death  and  cannot  otherwise  escape,  unless  to  satisfy  his  assailant's 
tur\'  he  will  kill  an  innocent  person  then  present,  the  fear  and  actual 
force  will  not  acquit  him  of  the  crime  and  punishment  of  murder  if  he 
commit  the  fact,  for  lie  ought  rather  to  die  himself  than  to  kill  an 
innocent ;  but  if  he  cannot  otlierwise  save  his  own  life,  the  law  permits 
him  in  his  own  defence  to  kill  the  assailant,  for,  by  the  violence  of  the 
assault  and  the  offence  committed  upon  him  b}-  the  assailant  himself, 
the  law  of  nature  and  necessity  hath  made  him  his  own  protectot'  cum 
deblto  moderamhie  inculpdtre  tutelm  (1  Hale  P.  C.  51).  But,  further 
still :  Lord  Hale  in  the  following  chapter  deals  with  the  position  as- 
serted by  the  casuists  and  sanctioned,  as  he  says,  by  Grotius  and  Puf- 
fendorf,  that  in  a  case  of  extreme  necessit}',  either  of  hunger  or  cloth- 
ing, '•  theft  is  no  theft,  or  at  least  not  punishable  as  theft;  and  some 
even  of  our  own  lawyers  have  asserted  the  same  ;  "  "  but,"  says  Lord 
Hale,  "I  take  it  that  here  in  England  that  rule,  at  least  bj-  the  laws 
of  England,  is  false  ;  and  therefore  if  a  person,  being  under  necessity 
for  want  of  victuals  or  clothes,  shall  upon  that  account  clandestine!}' 
and  cDiimo  furandi  steal  another  man's  goods,  it  is  a  felon}'  and  a 
crime  by  the  laws  of  England  punishable  with  death  "  (1  Hale  P.  C. 
54).  If  therefore  Lord  Hale  is  clear,  as  he  is,  that  extreme  necessity 
of  hunger  does  not  justify  larceny,  what  would  he  have  said  to  the 
doctrine  that  it  justified  murder?  It  is  satisfactory  to  find  that  an- 
other great  authority,  second  probably  only  to  Lord  Hale,  speaks  with' 
the  same  unhesitating  clearness  on  this  matter.  Sir  Michael  Foster,  in 
the  third  chapter  of  his  "Discourse  on  Homicide,"  deals  with  the  sub- 
ject of  Homicide  Founded  in  Necessity ;  and  the  whole  chapter  im- 
plies, and  is  insensible  unless  it  does  imply,  that  in  the  view  of  Sir 
Michael  Foster,  necessity  and  self-defence  (which  in  section  1  he 
defines  as  "opposing  force  to  force  even  to  the  death'')  are  con- 
vertible terms.  There  is  no  hint,  no  trace  of  the  doctrine  now  con- 
tended for  ;  the  whole  reasoning  of  the  chapter  is  entirely  inconsistent 
with  it. 

In  East  (1  East  P.  C.  271),  the  whole  chapter  on  Homicide  by  Ne- 
cessity is  taken  up  with  an  elaborate  discussion  of  the  limits  witliin 
which  necessity  —  in  Sir  Michael  Foster's  sense  (given  above)  —  of 
self-defence  is  a  justification  of  or  excuse  for  homicide.  There  is  a 
short  section  at  the  end  (p.  294)  very  generally  and  very  doubtfully 
expressed,  in  which  the  only  instance  discussed  is  the  well-known  one 
of  two  shipwrecked  men  on  a  plank  able  to  sustain  only  one  of  them  ; 
and  the  conclusion  is  left  by  .Sir  Edward  P^ast  entirely  undetermined. 
What  is  true  of  Sir  Fldwrnd  East  is  true  also  of  Mr.  Serjeant  Haw- 
kins.    The  whole  of  his  chapter  on  Justifiable  Homicide  assumes  that 


SECT.  III.]  REGINA   V.    DUDLEY.  509 

the  only  justifiable  homicide  of  a  private  nature  is  in  defence  against 
force  of  a  man's  person,  house,  or  goods.  In  the  26th  section  we  find 
again  the  case  of  the  two  shipwrecked  men  and  the  single  plauk,  with 
this  significant  expression  from  a  careful  writer :  ''  It  is  said  to  be  jus- 
titiable."  So,  too,  Dalton,  c.  150,  clearly  considers  necessity  and, 
self-defence,  in  Sir  Michael  Foster's  sense  of  that  expression,  to  be 
convertible  terms,  —  though  he  prints  without  comment  Lord  Bacon's 
instance  of  the  two  men  on  one  plank  as  a  quotation  from  Lord  Bacon, 
adding  nothing  whatever  to  it  of  his  own  ;  and  there  is  a  remarkable 
passage  at  page  339,  in  which  he  says  that  even  in  the  case  of  a  mur- 
derous assault  upon  a  man,  yet  before  he  may  take  the  life  of  the  man 
who  assaults  him,  even  in  self-defence,  cuncta  jvius  tentanda.  The 
passage  in  Staundforde,  on  which  almost  the  whole  of  the  dicta  we 
have  been  considering  are  built,  when  it  comes  to  be  examined,  does 
not  warrant  the  conclusion  which  has  been  derived  from  it.  The 
necessit}'  to  justif}'  homicide  must  be,  he  sa^'s,  inevitable  ;  and  the 
example  which  he  gives  to  illustrate  his  meaning  is  the  very  same 
which  has  just  been  cited  from  Dalton.  showing  that  the  necessitv  he 
was  speaking  of  was  a  physical  necessity  and  the  self-defence  a  defence 
against  physical  violence.  Russell  merel}'  repeats  the  language  of  the 
old  text-books  and  adds  no  new  authority  nor  any  fresh  considerations. 
Is  there,  then,  an}^  authority  for  the  proposition  which  has  been  pre- 
sented to  us  ?  Decided  cases  there  are  none.  The  case  of  the  seven 
English  sailors  referred  to  bv  the  commentator  on  Grolius  and  by 
Puffendorf  has  been  discovered  by  a  gentleman  of  the  Bar  —  wlio 
communicated  with  my  brother  Huddleston  —  to  convey-  the  authorit}', 
if  it  conveys  so  much,  of  a  single  judge  of  the  island  of  St.  Kitts, 
when  that  island  was  possessed  parti}-  b}-  France  and  partly  bv  this 
country,  somewhere  about  the  3'ear  1G41.  It  is  mentioned  in  a  medical 
treatise  published  at  Amsterdam,  and  is  altogether,  as  authority  in  an 
English  court,  as  unsatisfactor\-  as  possible.  The  American  case 
cited  b}'  my  brother  Stephen  in  his  digest  from  Wharton  on  Homicide, 
page  237,  in  which  it  was  decided,  correctly,  indeed,  that  sailors  had 
no  right  to  throw  passengers  overboard  to  save  themselves,  but  on  the 
somewhat  strange  ground  that  the  proper  mode  of  determining  who 
was  to  be  sacrificed  was  to  vote  upon  the  subject  by  ballot,  can 
hardly,  as  my  brother  Stephen  says,  be  an  authority  satisfactory  to  a 
court  in  this  countr}-.^     The   observations  of  Lord  Mansfield  in  tlie 

^  "The  case  does  not  become  'a  case  of  necessity'  unless  all  oidiuary  means  of  self- 
preservation  have  been  exhausted.  The  peril  must  be  instant,  overwlielming ;  leaving 
no  alternative  but  to  lose  our  own  life,  or  to  take  the  life  of  another  person.  .  .  .  For 
example :  suppose  that  two  persons  who  owe  no  duty  to  one  another  that  is  not  mutual 
should,  by  accident  not  attributable  to  either,  be  placed  in  a  situation  where  both 
cannot  survive.  Neither  is  bound  to  save  the  other's  life  b}'  sacrificing  his  own  ;  nor 
would  either  commit  a  crime  in  saving  his  own  life  in  a  struggle  for  the  only  means 
of  safety.  But  in  applj-ing  this  law,  we  must  look  not  only  to  the  jeopardy  in  which 
the  parties  are,  but  also  to  the  relations  in  which  they  stand.  The  slayer  must  be 
under  no  obligation  to  make  his  own  safety  secondary  to  the  safety  of  others.  .  .  . 


510  EEGINA    V.    DUDLEY.  [CIIAP.  V, 

case  of  Rex  v.  Stratton  and  others  (21  St.  Tr.  1045),  striking  and 
excellent  as  they  are,  were  delivered  in  a  political  trial,  where  the 
question  was  whether  a  political  necessity  had  arisen  for  deposing  a 
o-overnor  of  Madras.  But  they  have  little  application  to  tlie  case 
before  us,  which  must  be  decided  on  very  different  considerations.^ 
The  one  real  authority  of  former  times  is  Lord  Bacon,  who  in  his  com- 
mentary on  the  maxim,  Necessitas  inducit  priv Helium  quoad  jura 
prirata,  \siys  down  the  law  as  follows:  "Necessity  carrieth  a  privi- 
lege in  itself.  Necessity  is  of  three  sorts,  —  necessity  of  conservation 
of  life,  necessity  of  obedience,  and  necessity  of  the  act  of  God  or  of  a 
stranger.  First,  of  conservation  of  life.  If  a  man  steals  viands  to 
satisfy  his  present  hunger,  this  is  no  felony  nor  larceny.  So  if  divers 
be  in  danger  of  drowning  by  the  casting  away  of  some  boat  or  barge, 
and  one  of  them  get  to  some  plank,  or  on  the  boat's  side,  to  keep  him- 
self above  water,  and  another  to  save  his  life  thrust  him  from  it, 
whereby  he  is  drowned,  this  is  neither  se  defendendo  nor  by  misad- 
venture, but  justifiable."  On  this  it  is  to  be  observed  that  Lord 
Bacon's  proposition  that  stealing  to  satisfy-  hunger  is  no  larceny  is 
hardl}'  supported  by  Staundforde,  whom  he  cites  for  it,  and  is  ex- 
pressly contradicted  bj-  Lord  Hale  in  the  passage  already  cited.  And 
for  the  proposition  as  to  the  plank  or  boat,  it  is  said  to  be  derived 
from  the  canonists  ;  at  an}'  rate  he  cites  no  authorit}'  for  it,  and  it 
must  stand  upon  his  own.  Lord  Bacon  was  great  even  as  a  lawyer ; 
but  it  is  permissible  to  much  smaller  men,  relying  upon  principle  and 
on  the  authorit}'  of  others  the  equals  and  even  the  superiors  of  Lord 
Bacon  as  lawyers,  to  question   the   soundness  of  his  dictum.     There 

The  passenger  stands  in  a  position  different  from  that  of  the  officers  and  seamen  ;  it 
is  the  sailor  who  must  encounter  the  liardships  and  perils  of  the  voyage.  .  .  .  The 
captain,  indeed,  and  a  sufficient  number  of  seamen  to  navigate  the  boat,  must  be 
preserved.  .  .  .  This  rule  may  be  deemed  a  harsh  one  towards  the  sailor,  who  may 
thus  far  have  done  his  duty;  but  when  the  danger  is  so  extreme  that  the  only  hope  is 
in  sacrificing  either  a  sailor  or  a  passenger,  any  alternative  is  hard  ;  and  would  it  not 
be  the  hardest  of  any,  to  sacrifice  a  passenger  in  order  to  save  a  supernumerary  sailor  ? 
.  .  .  When  the  ship  is  in  no  danger  of  sinking,  but  all  sustenance  is  exhausted,  and 
a  sacrifice  of  one  person  is  necessary  to  appease  the  hunger  of  others,  the  selection  is 
by  lot.  This  mode  is  resorted  to  as  the  fairest  mode  ;  and,  in  some  sort,  as  an  appeal 
to  God  for  the  selection  of  the  victim."  —  Baldwin,  .1.  (to  the  jury)  in  United  States 
V.  Holmes,  1  Wall.  Jun.  ],  22. 

^  "  Wherever  necessity  forces  a  man  to  do  an  illegal  act,  fm-ces  him  to  do  it,  it  justi- 
fies liim,  because  no  man  can  be  guilty  of  a  crime  without  the  will  and  intention  of  his 
mind.  It  must  be  voluntary  ;  therefore  a  madman  cannot  commit  a  crime.  A  man 
who  is  absolutely  by  natural  necessity  forced,  his  will  does  not  go  along  with  the  act ; 
and  therefore  in  the  case  of  natural  necessity  (and,  by  the  by,  whenever  a  question 
turns  upon  natural  necessity  it  is  a  question  to  be  determined  by  a  jury^  and  by  a, 
jury  only  ;  it  is  a  question  upon  fact  and  the  degree  of  fact)  if  a  man  is  forced  to  com- 
mit acts  of  high  treason,  if  it  ajipears  really  force,  and  such  as  human  nature  could 
not  be  expected  to  resist,  and  the  jury  are  of  that  opinion,  the  man  is  not  then  guilty 
of  high  treason.  In  a  case  of  homicide,  if  a  man  was  attacked,  and  in  danger,  and 
so  on  in  a  variety  of  instances,  natural  necessity  certainl\-  justifies." —  Louu  M.\NS 
FIELD  (to  the  jury)  in  Kex  v.  Stratton.  21   How.  St.  Tr.  1045,  1223. 


SECT.  III.]  REGINA    V.    DUDLEY.  511 

are  mauy  conceivable  states  of  tbings  in  which  it  might  possibh'  be 
true  ;  but  if  Lord  Bacon  meant  to  lay  down  the  broad  proposition  tliat 
a  man  may  save  liis  life  by  killing,  if  necessary,  an  innocent  and  lui 
offending  neighbor,  it  certainly  is  not  law  at  the  present  day.  Tliere 
remains  the  authority  of  my  brother  Stephen,  who  both  in  his  Digest 
(Art.  32)  and  in  his  "  History  of  the  Criminal  Law  "  (vol.  ii.  p.  108), 
uses  language  perhaps  wide  enough  to  cover  this  case.  The  language 
is  somewhat  vague  in  both  i)laces,  but  it  does  not  in  either  place  cover 
this  case  of  necessity,  and  we  have  the  best  autliorit}-  for  saying  tfjat 
it  was  not  meant  to  cover  it.  If  it  had  been  necessary,  we  must  with 
true  deference  have  differed  from  him  ;  but  it  is  satisfactory  to  know 
that  we  have,  probably  at  least,  arrived  at  no  conclusion  in  which,  if 
he  had  been  a  member  of  the  court,  he  would  have  been  unable  to 
agree.  Neither  are  we  in  conflict  with  any  opinion  expressed  upon  this 
subject  by  the  learned  persons  wlio  formed  tlie  Commission  for  prepar- 
ing the  Criminal  Code.  The}-  say  on  this  subject:  '•  We  are  not  pre- 
pared to  suggest  that  necessity  should  in  every  case  be  a  justification  ; 
we  are  equally  unprepared  to  suggest  that  necessit}'  should  in  no  case 
be  a  defence.  We  judge  it  better  to  leave  such  questions  to  be  dealt  with 
when,  if  ever,  the}'  arise  in  practice,  by  applying  the  principles  of  law  to 
the  circumstances  of  the  particular  case."  It  would  have  been  satisfac- 
torj'  to  us  if  these  eminent  persons  could  have  told  us  whether  the 
received  definitions  of  legal  necessity  were  in  their  judgment  correct 
and  exhaustive,  and,  if  not,  in  what  wa}'  the}'  should  be  amended  ; 
but  as  it  is  we  have,  as  they  say,  "  to  apply  the  principles  of  law  to 
the  circumstances  of  this  particular  case."  Now,  except  for  the  pur- 
pose of  testing  how  far  tlie  conservation  of  a  man's  own  life  is  in  ail 
cases  and  under  all  circumstances  an  absolute,  unqualified,  and  para- 
mount duty,  we  exclude  from  our  consideration  all  the  incidents  of 
war.  We  are  dealing  with  a  case  of  private  homicide,  not  one  im- 
posed upon  men  in  tlie  service  of  their  sovereign  or  in  the  defence  of 
their  country.  Now  it  is  admitted  that  the  deliberate  killing  of  this 
unoffending  and  unresisting  boy  was  clearly  murder,  unless  the  killing 
can  be  justified  by  some  well-recognized  excuse  admitted  by  the  law. 
It  is  further  admitted  that  there  was  in  this  case  no  such  excuse,  un- 
less the  killing  was  justified  by  what  has  been  called  necessity.  But 
the  temptation  to  the  act  which  existed  here  was  not  what  the  law  has 
ever  called  necessity.  Nor  is  this  to  be  regretted.  Though  law  and 
morality  are  not  the  same,  and  though  many  things  may  be  immoral 
which  are  not  necessarily  illegal,  yet  the  absolute  divorce  of  law  from 
morality  would  be  of  fatal  consequence,  and  such  divorce  would  follow 
if  the  temptation  to  murder  in  this  case  were  to  be  held  by  law  an 
absolute  defence  of  it.  It  is  not  so.  To  preserve  one's  life  is,  gener- 
ally speaking,  a  duty  ;  but  it  may  be  the  plainest  and  the  highest  duty 
to  sacrifice  it.  War  is  full  of  instances  in  which  it  is  a  man's  duty  not 
to  live,  but  to  die.  The  duty,  in  case  of  shipwreck,  of  a  captain  to 
his  crew,  of  the  crew  to   the  passengers,  of  soldiers  to  women  and 


512  KEGINA    V.   DUDLEY.  [CHAI'.  V. 

children,  as  in  the  noble  ease  of  the  "Birkenhead," — these  duties 
impose  on  men  the  moral  necessity,  not  of  the  preservation,  but  of  the 
sacrifice,  of  their  lives  for  others,  from  which  in  no  country  —  least  of 
all,  it  is  to  be  hoped,  in  England — will  men  ever  shrink,  as  indeed 
they  have  not  shrunk.  It  is  not  correct,  therefore,  to  say  that  there 
is  any  absolute  and  unqualified  necessity  to  preserve  one's  life.  "iVeces- 
se  est  ut  earn,  non  ut  vivam^"  is  a  saying  of  a  Roman  officer  quoted 
by  Lord  Bacon  himself  with  high  eulogy  in  the  very  chapter  on  Ne- 
ceftsit}"  to  which  so  much  reference  has  been  made.  It  would  be  a 
ver}'  eas}^  and  cheap  display  of  commonplace  learning  to  quote  from 
Greek  and  Latin  authors,  —  from  Horace,  from  Juvenal,  from  Cicero, 
from  Eurii)ides,  —  passage  after  passage  in  which  the  duty  of  dying 
for  others  has  been  laid  down  in  glowing  and  emphatic  language  as 
resulting  from  tlie  principles  of  heathen  ethics.  It  is  enough  in  a 
Christian  country  to  remind  ourselves  of  the  Great  Example  which 
we  profess  to  follow.  It  is  not  needful  to  point  out  the  awful  danger 
of  admitting  the  principle  which  has  been  contended  for.  Who  is  to 
be  the  judge  of  this  sort  of  necessity?  B3'  what  measure  is  the  com- 
parative value  of  lives  to  be  measured?  Is  it  to  be  strength,  or  intel- 
lect, or  what?  It  is  plain  that  the  principle  leaves  to  him  who  is  to 
profit  by  it  to  determine  the  necessity  which  will  justifj'  him  in  delib- 
erately taking  another's  life  to  save  his  own.  In  this  case  the  weakest, 
the  j-oungest,  the  most  unresisting  was  chosen.  Was  it  more  neces- 
sar}'  to  kill  him  than  one  of  the  grown  men?     The  answer  must  be,  No. 

"  So  sjiake  the  Fiend  ;  and  with  necessity, 
The  tyrant's  plea,  excused  his  devilish  deeds." 

It  is  not  suggested  that  in  this  particular  case  the  "deeds"  were 
"  devilish  ;  "  but  it  is  quite  plain  that  such  a  principle,  once  admitted, 
might  be  made  the  legal  cloak  for  unbridled  passion  and  atrocious 
crime.  There  is  no  path  safe  for  judges  to  tread  but  to  ascertain  the 
law  to  the  best  of  their  abilitv  and  to  declare  it  according  to  their 
judgment,  and  if  in  any  case  the  law  appears  to  be  too  severe  on  indi- 
viduals, to  leave  it  to  the  Sovereign  to  exercise  that  prerogative  of 
mercy  which  the  Constitution  has  entrusted  to  the  hands  fittest  to 
dispense  it.  It  must  not  be  supposed  that,  in  refusing  to  admit  temp- 
tation to  be  an  excuse  for  crime,  it  is  forgotten  how  terrible  the  temp- 
tation was,  how  awful  the  sufl!"ering,  how  hard  in  such  trials  to  keep 
the  judgment  straight  and  the  conduct  pure.  We  are  often  compelled 
to  set  up  standards  we  cannot  reach  ourselves  and  to  la}'  down  rules 
which  we  could  not  ourselves  satisfy.  But  a  man  has  no  right  to 
declare  temptation  to  be  an  excuse,  though  he  might  himself  have 
yielded  to  it,  nor  allow  compassion  for  the  criminal  to  change  or 
weaken  in  an}'  manner  the  legal  definition  of  the  crime.  It  is  there- 
fore our  duty  to  declare  that  the  prisoners'  act  in  tliis  case  was  wilful 
murder;  that  the  facts  as  stated  in  the  verdict  are  no  legal  justification 
of  the  homicide.  Judgment  fi>r  the  Crown. 


SECT.  III.]  REX    V.    CRUTCIILEY.  513 


REX  V.  CRUTCHLEY. 

Berkshire  Assizes.     1831. 
[Reported  5  Currington  &  Payne,  1833.] 

Indictment  on  the  stat.  7  &  8  Geo.  4,  c.  30,  s.  4,  for  destro^-ing  a 
threshing  machine,  tlie  propert}-  of  a  person  named  Austin.  There 
were  other  counts  for  damaging  it  with  intent  to  destroy  it,  and  for 
damagino;  it  witii  intent  to  render  it  useless. 

It  appeared  that,  about  ten  o'clock  in  the  night  of  the  22d  of 
November,  1830,  a  mob  came  to  the  farm  of  Mr.  Austin,  and  broke  his 
threshing  machine  to  pieces.  It  was  proved  that  the  prisoner  was  with 
this  mob,  and  that  he  gave  the  threshing  machine  a  blow  with  a  sledge- 
hammer. 

Mr.  Justice  Patteson  allowed  the  witnesses  for  the  prosecution  to  be 
asked,  in  cross-examination,  whether  many  persons  had  not  been  com- 
pelled to  join  this  mob  against  their  will,  and  whether  the  mob  did  not 
compel  each  person  to  give  one  blow  to  each  threshing  machine  that 
they  broke. 

For  the  defence  William  Davis  was  called.  He  was  the  gamekeeper 
of  Mrs.  Bainbridge,  in  whose  service  the  prisoner  was  an  under-keeper. 
He  stated  that,  being  on  the  watch  at  Mrs.  Bainbridge's  preserves,  the 
mob  laid  hold  of  himself  and  the  prisoner,  and  compelled  both  to  go 
with  them  for  the  purpose  of  breaking  threshing  machines. 

Mr.  Justice  Patteson  allowed  the  witness  to  state  that,  before  the 
prisoner  and  himself  had  gone  many  yards  with  the  mob,  the}-  agreed 
to  run  away  from  the  mob  the  first  opportunity. 

The  witness  stated  that  he  ran  away  from  the  mob  in  about  ten 
minutes,  and  that  the  prisoner  joined  him  in  about  a  quarter  of  an 
hour  after  that  time,  and  that  they  then  returned  to  their  watching  at 
the  preserves. 

Verdict,  JVot  guilty.^ 

1  "With  regard  to  the  argument  you  have  heard,  that  these  piisoiiers  were  iiidueed 
to  join  Thorn,  and  to  continue  with  him  from  a  fear  of  personal  violence  to  themselves, 
I  am  bound  to  tell  you,  that  where  parties  for  .such  a  reason  are  induced  to  join  a 
mischievous  man,  it  is  not  their  fear  of  violence  to  themselves  which  can  excuse  their 
conduct  to  others.  You  probably,  gentlemen,  never  saw  two  men  tried  at  a  criminal 
bar  for  an  offence  which  they  had  jointly  committed,  where  one  of  them  had  not  lieen 
to  a  certain  extent  in  fear  of  the  other,  and  had  not  been  influenced  by  that  fear  in  the 
conduct  he  pursued  ;  yet  that  circumstance  has  never  been  received  by  the  law  as 
an  excuse  for  his  crime,  and  the  law  is,  that  no  man,  from  a  fear  of  consequences  to 
himself,  has  a  right  to  make  himself  a  ]>arty  to  committing  mischief  on  mankind." 
Lord  Denman,  C.  J.,  in  Reg.  v.  Tyler,  8  C.  &  P.  616.  —Ed. 


0l4  ARP    V.    STATE.  [chap.  V. 

EESPUBLICA  V.  McCARTY. 

Supreme  Court  of  Pennsylvania.    1781. 

[Reported  2  Dallas,  86.] 

McKean,  C.  J.^  The  crime  imputed  to  the  defendant  by  the  indict- 
ment is  that  of  levying  war,  by  joining  the  armies  of  the  King  of 
Great  Britain.  Enlisting,  or  procuring  any  person  to  be  enlisted,  m 
the  service  of  the  eneiiiy,  is  clearly  an  act  of  treason.  By  the  defend- 
ant's own  confession  it  api)ears  that  he  actually  enlisted  in  a  corps 
belonging  to  the  enemy  ;  but  it  also  appears  tliat  he  had  previously  been 
taken  prisoner  by  them,  and  confined  at  Wilmington.  He  remained, 
however,  with  the  British  troops  for  ten  or  eleven  months,  during  which 
he  might  easily  have  accomplished  his  escape,  and  it  must  be  remem- 
bered that  in  the  eye  of  the  law  nothing  will  excuse  the  act  of  joining 
an  enemy  but  the  fear  of  immediate  death  ;  not  the  fear  of  any  infe- 
rior personal  injury,  nor  the  apprehension  of  any  outrage  upon  property. 
But  had  the  defendant  enlisted  merely  from  the  fear  of  famishing,  and 
with  a  sincere  intention  to  make  his  escape,  the  fear  could  not  surely 
always  continue,  nor  could  his  intention  remain  unexecuted  for  so  long 
a  period. 


ARP  V.  STATE. 
Supreme  Court  of  Alabama.     1893. 

[Reported  97  Ala.  5.] 

Coleman,  J.^  .  .  .  The  court  was  asked  to  give  the  following  charge : 
"  If  the  jury  believe  from  the  evidence  that  the  defendant  killed  Pogue 
under  duress,  under  corai)ulsion  from  a  necessity,  under  threats  of  im- 
mediate impending  peril  to  his  own  life,  such  as  to  take  away  the  free 
agency  of  the  defendant,  then  he  is  not  guilty."  The  court  refused  this 
charge,  and  the  refusal  is  assigned  as  error.  This  brings  up  for  con- 
sideration the  question,  what  is  the  law  when  one  person,  under  com- 
pulsion or  fear  of  great  bodih"  harm  to  himself,  takes  the  life  of  an 
innocent  person  ;  and  what  is  his  duty  when  placed  under  such 
circumstances? 

Tlie  fact  that  defendant  had  been  in  the  employment  of  Burkhalter 
is  no  excuse.     The  command  of  a  superior  to  an  inferior,  of  a  parent 

1  To  the  jury  only  so  much  of  the  charge  i?  giveu  as  deals  with  the  question  of  com- 
pulsion. —  Ed. 

2  Only  so  much  of  the  opinion  as  discusses  the  question  of  compulsion  is  given, 
—  Ed. 


SECT.  III.]  AKP    V.    STATE.  515 

to  a  child,  of  a  master  to  a  servant,  or  of  a  principal  to  his  agent,  will 
not  justify  a  criminal  act  done  in  pursuance  of  such  command,  1  Bishop, 
§  355  ;  Reese  v.  State,  73  Ala.  18  ;  4  Blackstone,  §  27. 

In  a  learned  discussion  of  the  question,  to  be  found  in  Leading  Crim- 
inal Cases,  vol.  i,  p.  81,  and  note  on  p.  85,  by  Bennett  and  Heard,  it  is 
declared  that  "  for  certain  crimes  the  wife  is  responsible,  although  com- 
mitted under  the  compulsion  of  her  husband.  Such  are  murder,"  etc. 
To  the  same  effect  is  the  text  in  14  Am.  &  Eng.  Encyc.  of  Law,  p.  649  ; 
and  this  court  gave  sanction  to  this  rule  in  Bibb  v.  State,  94  Ala.  31  ; 
10  So.  Rep.  506.  In  Ohio  a  contrary  rule  prevails  in  regard  to  tlie 
wife.  Davis  v.  State,  15  Ohio,  72  ;  45  Amer.  Dec.  559.  In  Arkansas 
there  is  a  statute  specially  exempting  married  women  from  liability; 
when  "  acting  under  the  threats,  commands,  or  coercion  of  their  hus- 
bands ; "  but  it  was  held  under  this  act  there  was  no  presumption  in 
favor  of  the  wife  accused  of  murder,  and  that  it  was  incumbent  on  her 
to  show  that  the  crime  was  done  under  the  influence  of  such  coercion, 
threats,  or  commands.  Edwards  v.  State,  27  Ark.  493,  reported  in 
1  Criminal  Law,  by  Green,  p.  741. 

In  the  case  of  Beal  r.  The  State  of  Georgia,  72  Ga.  Rep.  200,  and 
also  in  the  case  of  The  People  v.  Miller,  66  Cal.  468,  the  question  arose 
upon  the  sufficiency  of  the  testimony  of  a  witness  to  authorize  a  con- 
viction for  a  felony,  it  being  contended  that  the  witness  was  an  accom- 
plice. In  both  cases  the  witness  was  under  fourteen  years  of  age.  It 
was  held  that  if  the  witness  acted  under  threats  and  compulsion,  lie  was 
not  an  accomplice.     The  defendants  were  convicted  in  both  cases. 

In  the  case  of  Rex  v.  Crutchley,  5  C.  &  P.  133,  the  defendant  was 
indicted  for  breaking  a  threshing  machine.  The  defendant  was  allowed 
to  prove  that  he  was  compelled  by  a  mob  to  go  with  them  and  com- 
pelled to  hammer  the  threshing  machine,  and  was  also  permitted  to 
pr6ve  that  he  ran  away  at  the  first  opportunity. 

In  Hawkins'  Pleas  of  the  Crown,  vol.  i,  c.  28,  §  26,  it  is  said : 
"The  killing  of  an  innocent  person  in  defence  of  a  man's  self  is  said  to 
be  justifiable  in  some  special  cases,  as  if  two  be  shipwrecked  together, 
and  one  of  them  get  upon  a  plank  to  save  himself,  and  the  otlier  also, 
having  no  other  means  to  save  his  life,  get  upon  the  same  plank,  and 
finding  it  not  able  to  support  them  both,  thrusts  the  other  from  it, 
whereby  he  is  drowned,  it  seems  that  he  who  thus  preserved  his  own 
life  at  the  expense  of  that  other  ma}"  justify  the  fact  Iw  the  inevitable 
necessit}'  of  the  case." 

In  1  Hale's  Pleas  of  the  Crown,  c.  vii,  §  50,  it  is  said:  "There 
is  to  be  observed  a  difference  between  the  times  of  war,  or  public  in- 
surrection or  rebellion,  when  a  person  is  under  so  great  a  power  that 
he  cannot  resist  or  avoid,  the  law  in  some  cases  allows  an  impunity  for 
parties  compelled,  or  drawn  by  fear  of  death,  to  do  some  acts  in  them- 
selves capital,  which  admit  no  excuse  in  time  of  peace.  .  .  .  Now  as 
to  times  of  peace,  if  a  man  be  menaced  with  death  unless  he  will  com- 
mit an  act  of  treason,  murder,  or  robbery,  the  fear  of  death  doth  not 


)16  ARP   V.    STATE.  [CHAl*.  V. 


i 


excuse  him  if  lie  commit  the  act;  for  the  law  hath  provided  a  sufficient 
remedy  against  such  fears  by  applying  himself  to  the  court  and  officers 
of  justice  for  a  writ  or  precept  dc  seciritate  jxicis.     Again,  if  a  man  be  ['{ 

desperately  assaulted,  and  in  peril  of  death,  and  cannot  otherwise  es- 
ca|)e  unless  to  satisf}'  his  assailant's  fury  he  will  kill  an  innocent  per- 
son, the  present  fear  of  actual  force  will  not  acquit  him  of  the  crime 
and  punishment  of  murder,  if  he  commit  the  act,  for  he  ought  rather 
ti)  die  himself  than  kill  an  innocent ;  but  if  he  cannot  otherwise  save 
his  own  life,  the  law  permits  him  in  his  own  defence  to  kill  his 
assailant." 

Blackstone,  vol.  4,  §  30,  declares  the  law  to  be,  "  Though  a  man  be 
violent!}'  assaulted,  and  has  not  other  possible  means  of  escaping  death 
but  by  killing  an  innocent  person,  this  fear  and  force  shall  not  acquit 
him  of  murder ;  for  he  ought  rather  to  die  himself  than  escape  by  the 
murder  of  an  innocent." 

In  Stephen's  Commentaries,  vol.  4,  book  6,  c.  2,  pp.  83-84,  the 
same   rule  is  declared  to  be  the  law. 

In  least's  Crown  Law,  the  same  general  principles  are  declared  as  to 
cases  of  treason  and  rebellion,  etc.  But  on  page  294,  after  referring 
to  the  case  of  two  persons  being  shipwrecked  and  getting  on  the  same 
plank,  proceeds  as  follows :  "  Yet,  according  to  Lord  Hale,  a  man  can- 
not even  excuse  the  killing  of  another  who  is  innocent,  under  a  threat, 
however  urgent,  of  losing  his  own  life  unless  he  comply.  But  if  the 
commission  of  treason  may  be  extenuated  by  the  fear  of  present  death, 
and  while  the  part}^  is  under  actual  compulsion,  there  seems  no  reason 
wh\'  this  offence  may  not  be  mitigated  upon  the  like  consideration  of 
human  infirmity.  But  if  the  party  might,  as  Lord  Hale  in  one  place 
supposes,  have  recourse  to  the  law  for  his  protection  against  such  threats, 
it  will  certainly  be  no  excuse  for  committing  murder." 

In  Russell  on  Crimes,  vol.  1,  §  699,  it  is  stated  as  follows:  "The 
person  committing  the  crime  must  be  a  free  agent,  and  not  subject  to 
actual  force  at  the  time  the  act  is  done  ;  thus,  if  A  by  force  take  the 
arm  of  B,  in  which  is  a  weapon,  and  therewith  kill  C,  A  is  guilty  of 
murder,  but  not  B.  But  if  it  be  onl}'  a  moral  force  put  upon  B,  as 
by  threatening  him  with  duress  or  imprisonment,  or  even  by  an  assault 
to  the  peril  of  his  life,  in  order  to  compel  him  to  kill  C,  it  is  no  legal 
excuse." 

In  the  case  of  Regina  v.  Tyler,  reported  in  8  Car.  &  Pa^-ne,  618, 
Lord  Denman,  C.  J.,  declares  the  law  as  follows:  "With  regard  to 
the  argument  you  have  heard,  that  these  prisoners  were  induced  to 
join  Thom,  and  to  continue  with  him  from  a  fear  of  personal  violence 
to  themselves,  I  am  bound  to  tell  3'ou  that  where  parties  for  such 
reason  are  induced  to  join  a  mischievous  man,  it  is  not  their  fear  of 
violence  to  themselves  which  can  excuse  their  conduct  to  others.  .  .  . 
The  law  is  that  no  man,  from  a  fear  of  consequences  to  himself,  has  a 
right  to  make  himself  a  party  to  committing  mischief  on  mankind." 

In  the  case  of  Respublica  v.  McCarty,  2  Dallas,   86,  when  the  de- 


SECT.  III.]  ARP    V.    STATE.  .  517 

fendant  was  on  trial  for  high  treason,  the  court  uses  this  language  : 
"  It  must  be  remembered  that,  in  the  eye  of  tlie  law,  nothing  will  ex- 
cuse the  act  of  joining  the  enemy  but  the  fear  of  immediate  death  ;  not 
the  fear  of  ^y  inferior  personal  injury,  nor  the  apprehension  of  any 
outrage  on  property." 

The  same  rule  in  regard  to  persons  charged  with  treason  as  that 
stated  in  Hale's  Pleas  of  tlie  Crown  is  declared  in  Hawkins,  vol.  1, 
c.  17,  §  28  and  note,  and  both  authors  hold  that  "  the  question  of 
the  practicability  of  escape  is  to  be  considered,  and  that  if  the  person 
thus  acting  under  compulsion  continued  in  the  treasonable  acts  longer 
than  was  necessary,  the  defence  ^ j)ro  timore  mortis'  will  not  be 
available." 

This  principle  finds  further  support  in  the  case  of  U.  S.  v.  Greiner, 
tried  for  treason,  reported  in  4  Phil.  396,  in  the  following  language: 
"The  only  force  which  excuses  on  the  grounds  of  compulsion  is  force 
upon  the  person  and  present  fear  of  death,  wliich  force  and  fear  must 
continue  during  all  the  time  of  military  service,  and  that  it  is  incum- 
bent in  such  a  case  upon  him  who  makes  force  his  defence  to  show  an 
actual  force,  and  that  he  quitted  the  service  as  soon  as  lie  could." 

Wharton's  Criminal  Law,  vol.  1,  §  94,  under  the  head  of  Persons 
under  Compulsion,  says  :  "  Compulsion  may  be  viewed  in  two  aspects  : 
1.  When  tiie  immediate  agent  is  physically  forced  to  do  the  injury,  as 
when  his  hand  is  seized  by  a  person  of  superior  strength,  and  is  used 
against  his  will  to  strike  a  blow,  in  which  case  no  guilt  attaclies  to  the 
person  so  coerced.  2.  When  the  force  applied  is  that  of  authority  or 
fear.  Thus,  when  a  person  not  intending  wrong  is  swept  along  by  a 
party  of  persons  whom  he  cannot  resist,  he  is  not  responsible,  if  he  is 
compelled  to  do  wrong  by  threats  on  the  part  of  the  offenders  instantly 
to  kill  liira,  or  to  do  him  grievous  bodily  harm  if  he  refuses  ;  but  threats 
of  future  injury,  or  the  command  of  any  one  not  the  luisband  of  the 
offender,  do  not  excuse  any  offence.  Thus,  it  is  a  defence  to  an  indict- 
ment for  treason  that  the  defendant  was  acting  in  obedience  to  a  de 
facto  government,  or  to  such  concurring  and  overbearing  sense  of  the 
communit}'  in  which  he  resided  as  to  imperil  his  life  in  case  of  dissent." 
In  section  1803  a,  of  the  same  author  (Wharton),  it  is  said :  "  No  mat- 
ter what  may  be  the  shape  compulsion  takes,  if  it  affects  the  person 
and  he  yielded  to  it  honafide^  it  is  a  legitimate  defence." 

We  have  examined  the  cases  cited  by  Mr.  Wharton  to  sustain  the 
text,  and  find  them  to  be  cases  of  treason,  or  fear  from  the  party  slain, 
and  in  none  of  them  is  tliere  a  rule  different  from  that  declared  in  the 
common  law  authorities  cited  by  us. 

Bisliop  on  Criminal  Law,  §§  346,  347,  348,  treats  of  the  rules  of  law 
applicable  to  acts  done  under  necessity  and  compulsion.  It  is  here 
declared:  "That  always  an  act  done  from  compulsion  and  necessity  is 
not  a  crime.  To  this  proposition  the  law  knows  no  exception.  Wliat- 
ever  it  is  necessary-  for  a  man  to  do  to  save  liis  life,  is,  in  general,  to  be 
considered  as  compelled." 


518  .  ARP   V.    STATE.  [chap.  V. 

The  cases  cited  to  these  propositions  show  the  facts  to  be  different 
from  those  under  consideration.  The  case  referred  in  1  Plow.  19,  was 
where  the  defendant  had  thrown  overboard  a  part  of  his  cargo  of  green 
wood  during  a  severe  tempest  to  save  his  vessel  and  the  remainder 
of  his  cargo.  The  otlier,  5  Q.  B.  279,  was  for  the  failure  to  keep  up 
a  highway-,  which  the  encroachments  of  the  sea  had  made  impossible  ; 
and  that  of  Tate  v.  The  State,  5  Black.  73,  was  also  that  of  a  super- 
visor of  a  public  highwa}',  and  the  others  were  cases  of  treason,  to 
which  reference  has  been  made.  In  section  348,  the  author  cites  the  rule 
laid  down  by  Russell,  and  also  of  Lord  Denman,  and  in  1  East  P.  C,  to 
which  reference  has  already  been  made.  In  section  845,  the  same  author 
uses  the  following  language:  "The  cases  in  which  a  man  is  clearly 
justified  in  taking  another's  life  to  save  his  own  are  when  the  other 
has  voluntarily  placed  himself  in  the  wrong.  And  probably^  as  we  have 
seen,  it  is  never  the  right  of  one  to  deprive  an  innocent  third  person  of 
life  for  the  preservation  of  his  own.  Tliere  are,  it  looulcl  seem,  circum- 
stances in  which  one  is  bound  even  to  die  for  another."  Italics  are 
ours,  — emi)hasized  to  call  attention  to  the  fact  that  the  author  is  care- 
ful to  content  himself  more  with  a  reference  to  the  authorities  which 
declare  these  principles  of  law  than  an  adoption  of  them  as  his  own. 

The  authorities  seem  to  be  conclusive  that,  at  common  law,  no  man 
can  excuse  liiinself,  under  the  plea  of  necessity  or  compulsion,  for  tak- 
ing the  life  of  an  innocent  person. 

Our  statute  has  divided  murder  into  two  degrees,  and  affixed  the 
punishment  for  each  degree,  but  in  no  respect  has  added  to  or  taken 
away  an}-  of  the  ingredients  of  murder  as  known  at  common  law. 
Mitchell  ('.  State,  60  Ala.  26  ;  Fields  v.  State,  52  Ala.  352. 

That  persons  have  exposed  themselves  to  imminent  peril  and  death 
for  their  fellow  man,  and  that  there  are  instances  wliere  innocent  per- 
sons have  submitted  to  murderous  assaults  and  death  rather  than  take 
life  is  well  established,  but  such  self-sacrifices  emanated  from  other  mo- 
tives than  the  fear  of  legal  punisliraent.  That  the  fear  of  punisliment 
b}-  imprisonment  or  death  at  some  future  da}*  b}'  due  process  of  law 
can  operate  with  greater  force  to  restrain  or  deter  from  its  violation, 
than  the  fear  of  immediate  death  unlawfull}-  inflicted,  is  hardlj'  recon- 
cilable witli  our  knowledge  and  experience  with  tliat  class  of  mankind 
who  are  controlled  by  no  other  higher  principle  tlian  fear  of  the  law. 
Be  this  as  it  may,  there  are  other  principles  of  law  undoubtedl}'  ap[)li- 
cable  to  the  facts  of  this  case,  and  vvhicli  we  think  cannot  be  ignored. 

The  evidence  of  the  defendant  himself  shows  that  lie  went  to  Burk- 
halter's  house  about  nine  o'clock  of  the  niglit  of  the  killing,  and  there 
met  Burklialter  and  Leith,  and  tliat  it  was  there,  and  at  that  time,  they 
told  him  he  must  kill  Pogue.  The  evidence  is  not  clear  as  to  how  far 
it  was  from  Burkhalter's  to  Pogue's  dwelling,  where  the  crime  was  per- 
petrated ;  but  it  was  sufficient  to  show  that  there  was  some  considerable 
distance  between  the  places,  and  he  testifies  as  they  went  to  Pogue's, 
they  went  by  the  mill  and  got  the  axe  with  which  he  killed  him.    Under 


SKCT.  lll-j  UNITED    STATES   V.    JONES.  519 

every  principle  of  law,  it  was  the  duty  of  the  defendant  to  have  escaped 
from  Burkhalter  and  Leith,  after  being  informed  of  their  intention  to 
compel  him  to  take  the  life  of  Pogue,  as  much  so  as  it  is  the  duty  of 
one  who  had  been  compelled  to  take  up  arms  against  his  own  govern- 
ment, if  he  can  do  so  with  reasonable  safety  to  himself ;  or  of  one  as- 
sailed, to  retreat  before  taking  the  life  of  his  assailant.  Although  it 
may  have  been  true  that  at  the  time  he  struck  the  fatal  blow  he  had 
reason  to  believe  he  would  be  killed  by  Burkhalter  and  Leith  un- 
less he  killed  Pogue,  yet,  if  he  had  the  opportunity,  if  it  was  practi- 
cable, after  being  informed  at  Burkhalter's  house  of  their  intention,  he 
could  have  made  his  escape  from  them  witli  reasonable  safetv,  and  he 
failed  to  do  so,  but  remained  with  them  until  the  time  of  the  killing, 
the  immediate  necessity  or  compulsion  under  wliich  he  acted  at  that 
time  would  be  no  excuse  to  liim.  As  to  whetlier  escape  was  practi- 
cable to  defendant,  as  we  have  stated,  was  a  question  of  fact  for  the 
jury.  The  charge,  numbered  1  and  refused  by  the  court,  ignored  this 
principle  of  law  and  phase  of  evidence,  and  demanded  an  acquittal  of 
defendant  if  at  the  time  of  the  killing  the  compulsion  and  coercion 
operated  upon  the  defendant,  and  forced  him  to  the  commission  of  the 
act,  notwithstanding  he  might  have  avoided  the  necessity  b}-  escape 
before  that  time.  We  do  not  hesitate  to  sa}'  he  would  have  been  justi- 
fiable in  taking  the  life  of  Burkhalter  and  Leith,  if  there  had  been  no 
other  way  open  to  enable  him  to  avoid  the  necessity  of  taking  the  life 
of  an  innocent  man.  The  charge  requested  was  erroneous  and  mis- 
leading, in  the  respect  that  it  ignored  the  law  and  evidence  in  these 
respects.  Affirmed. 


UNITED    STATES    v.   JONES. 
U.  S.  Circuit  Court,  Dist.  Pennsylvania.     1813. 

[Reported  3  Washingtoji,  C.  C.  209] 

The  prisoner  was  indicted  for  feloniously  and  piratically  entering  a 
certain  Portuguese  brig  (b}'  name),  and  assaulting  the  captain,  &c.  It 
appeared  in  evidence,  on  the  part  of  the  prosecution,  that  the  defendant 
was  the  first  lieutenant  of  a  privateer  schooner,  called  the  "  Revenge," 
William  Butler  master,  duly  commissioned  by  the  President  of  the 
United  States,  on  the  12th  of  October,  1812.  The  points  of  law  raised 
by  the  counsel  for  the  prisoner  were  five.  The  prisoner  was  an  inferior 
officer,  and  was  bound  to  obey  the  orders  of  Captain  Butler ;  of  course, 
he  cannot  be  punished  for  having  done  so.^ 

1  Ouly  so  much  of  the  case  as  involves  this  point  is  given. 


520  PEOPLE    V.   DETKOIT    WHITE    LEAD    WORKS.  [CHAl'.   V. 

Washington,  Justice,  charged  the  jury.  The  only  remaining  ques- 
tion of  law  whicli  has  been  raised  in  this  cause  is,  tliat  the  prisoner 
ought  to  be  presumed  to  have  acted  under  the  orders  of  liis  superior 
officer,  which  it  was  iiis  duty  to  obey.  This  doctrine,  equally  alarming 
and  unfounded,  underwent  an  examination  and  was  decided  by  this 
court  in  the  case  of  General  Bright.  It  is  i-epugnaut  to  reason,  and 
to  the  positive  law  of  the  land.  No  military  or  civil  otflcer  can  com- 
mand an  inferior  to  violate  the  laws  of  his  country  ;  nor  will  such,  a 
command  excuse,  much  less  justify,  the  act.  Can  it  be  for  a  moment 
pretended  that  the  general  of  an  army,  or  the  commander  of  a  shi|)  of 
war,  can  order  one  of  his  men  to  commit  murder  or  felony?  Certainly 
not.  In  relation  to  the  navy,  let  it  be  remarked,  that  the  fourteenth 
section  of  the  law  for  the  better  government  of  that  part  of  the  public 
force,  which  enjoins  on  inferior  officers  or  privates  the  duty  of  obe- 
dience to  their  superior,  cautiously  speaks  of  the  Imoful  orders  of  that 
superior. 

Disobedience  of  an  unlawful  order  must  not,  of  course,  be  punish- 
able ;  and  a  court-martial  would,  in  such  a  case,  be  bound  to  acquit  the 
person  tried  upon  a  charge  of  disobedience.  We  do  not  mean  to  go 
further  than  to  say,  that  the  participation  .of  the  inferior  officer  in  an 
act  which  he  knows,  or  ought  to  know,  to  be  illegal,  will  not  be  excused 
by  the  order  of  his  suDerior.^ 


PEOPLE   i\    DETROIT  WHITE   LEAD    WORKS. 

SUPKKME    COUUT    OF    ISIlCHIGAN.       1890. 
[ReportPil  82  Mich.  47 L] 

Grant,  J.^  This  case  is  brought  to  this  court  b}'  writ  of  certiorari 
from  the  Recorder's  Court  of  the  city  of  Deti'oit. 

The  defendants  were  convicted  of  unlawfully  and  wilfully  creating 
and  maintaining  a  nuisance,  consisting  of  the  creation  and  emission  of 
unwholesome,  oflfensive,  and  nauseating  odors,  smells,  vapors,  and 
smoke,  to  the  great  damage  and  common  nuisance  of  all  people  living 
in  the  neighborhood  thereof,  and  of  all  pebple  passing  and  repassing 
on  the  streets  and  alleys  adjacent  thereto,  contrary  to  an  ordinance  of 
tlie  city  in  such  case  made  and  provided,  lieing  section  5,  chap,  f)'). 
Rev.  Ord.  1884.  The  ordinance  m  question  is  set  forth  in  the  return  of 
the  judge  to  the  writ.  "^ 

The  defendant  the  Detroit  White  T^oad  Works  is  a  corporation  organ- 
ized under  the  laws  of  the  state.  Defendant  Ilinchman  is  president, 
defendant  Dean  is  vice-president,  and  defendant  Rogers  is  treasurer 
and  manager.     The  defendants  Ilinchman,   Dean>  and  Rogers  were 

1  Ace.  Rex  V.  Thomas,  1  Russ.  Crimes,  731;  U.  S.  v.  Carr,  1  Woods,  560;  Com.  v. 
Blodgett,  1 2  Met.  56.  —  Ed. 

-  Part  of  the  opinion  is  omitted. 


SECT.  III.]         PEOPLE    V.    DETROIT    WHITE    LEAD    WORKS.  521 

fined  $1  each,  and  the  defendant  the  Detroit  White  Lead  Works  $10 
and  costs.     No  other  penalty  was  imposed. 

The  facts  found  and  returned  by  the  Recorder's  Court  clearly  estab- 
lish a  nuisance,  according  to  all  the  autliorities.  These  facts  so  found 
are  conclusive  in  tliis  court,  and  we  can  onl}'  apply  the  law  to  the 
facts.  Counsel  for  defendants  cannot,  therefore,  seriously  contend  that 
we  can  enter  into  a  discussion  and  determination  of  that  question, 
especially  as  the  evidence  is  not  before  us. 

Defendants  are  not  aided  by  the  fact  found  by  the  court  that,  during 
the  time  covered  by  the  complaint,  the  business,  in  all  respects,  had 
been  carried  on  in  a  careful  and  prudent  manner,  and  nothing  had  been 
done  by  those  managing  it  that  was  not  a  reasonable  and  necessary 
incident  of  the  business  ;  nor  by  the  further  fact  that,  when  the  defend- 
ant company  commenced  its  business,  the  lands  in  tlie  vicinit}'  of  its 
works  were  open  common.  It  is  undoubtedly  true  that  the  defendants, 
or  their  predecessors,  established  their  works  at  a  point  remote  from 
habitation,  possibly  in  recognition  of  the  fact  that  such  a  business  was 
at  least  not  pleasant,  if  not  injurious,  to  the  health  and  enjoyment  of 
those  living  near  it.  The  city  of  Detroit  has  extended  to  the  defend- 
ants' works,  and  the  owners  of  adjoining  lands  have  erected  dwellings 
thereon.  This  they^  of  course,  had  the  legal  right  to  do.  The  defend- 
ants cannot  be  protected  in  the  enjoyment  of  their  property,  and  the 
carrying  on  of  their  business,  if  it  becomes  a  nuisance  to  people  living 
upon  the  adjoining  properties,  and  to  those  doing  legitimate  business  with 
them.  Whenever  such  a  business  becomes  a  nuisance,  it  must  give 
way  to  the  rights  of  the  puljlic,  and  the  owners  thereof  must  either 
devise  some  means  to  avoid  the  nuisance,  or  must  renxjve  or  cease  the 
business.  It  ma^-  not  be  continued  to  the  injury  of  the  health  of  those 
living  in  its  vicinity.  This  rule  is  fi^unded  1)oth  upon  reason  and 
authority.  Nor  is  it  of  any  consequence  that  the  business  is  useful  or 
necessaiy,  or  that  it  contributes  to  the  wealth  and  prospei'it}'  of  tlie 
community.  Wood,  Nuis.,  §  19;  Queen  v.  Train,  2  Best  &  8.  640; 
Works  V.  Railroad  Co.,  5  McLean,  425;  Respublica  i\  Caldwell,  1  Dall. 
150;  Ross  ('.  Butler,  19  N.  J.  p:q.  296;  Robinson  v.  Baugh,  31  Mich. 
290. 

It  is  true  that,  in  places  of  population  and  business,  not  everything 
that  causes  discomfort,  inconvenience,  and  annoyance,  or  which,  per- 
haps, may  lessen  the  value  of  surrounding  pro[)erty,  will  be  eoudemned 
and  abated  as  a  nuisance.  It  is  often  ditiicult  to  determine  the  bound- 
ary line  in  man}'  such  cases.  The  carrying  on  of  many  legitimate 
businesses  is  often  productive  of  more  or  less  annoyance,  discomfort, 
and  inconvenience,  and  may  injure  surrounding  propert}'  for  certain 
purposes,  and  still  constitute  no  invasion  of  the  rights  of  the  people  living 
in  the  vicinity.  Such  a  case  was  Gilbert  v.  Showerman.  23  Mich.  448. 
A  case  similar  in  its  facts  was  before  this  court  in  Robinson  i\  Baugh, 
31  Mich.  290,  which  was  distinguished  by  the  court  from  (Tilbert  v. 
Showerman.     In  the  former  case  the  business  was  legitimate  and  neces- 


522  COMMONWEALTH   V.   MILLER,  [CIIAP.   V. 

sary.  The  suit  was  brought  in  equity  to  enjoin  the  business  at  the 
phice  where  carried  on.  The  tacts  were  tliat  smoke  and  soot  {"rom  de- 
fendant s  works  were  often  borne  by  the  wind  in  large  amounts  to  the 
premises  of  the  complainants,  and  sometimes  entered  their  dwellings  by 
the  chimneys,  and  tlirough  cracks  by  the  doors  and  windows,  in  such 
measure  as  to  be  extremel\-  otfensive  and  harmful,  and  the  noise  so 
great  as  to  be  disagreeable,  and  positively  hurtful,  the  jar  annoying 
and  disturbing  the  sick,  and  in  some  cases  causing  substantial  damage 
to  dwellings.     The  court  laid  down  the  rule  (page  296)  as  follows :  — 

"  However  lawful  the  business  may  be  in  itself,  and  however  suitable 
in  the  abstract  the  location  may  be,  they  cannot  avail  to  authorize  the 
conductor  of  the  business  to  coiituuie  it  in  a  way  which  directly,  palpably, 
and  substantially  damages  the  pro[)erty  of  others,  unless,  indeed,  the 
operator  is  able  to  plant  himself  on  some  peculiar  ground  of  grant, 
covenant,  license,  or  privilege  which  ought  to  prevail  against  complain- 
ants, or  on  some  prescriptive  right,  and  whieh  in  this  country  can 
rarely  happen." 

No  case  has  been  cited,  and  we  think  none  can  be  found,  sustain- 
ing the  continuance  of  a  business  in  the  midst  of  a  populous  com- 
munity, which  constantly  produces  odors,  smoke,  and  soot  of  such  a 
noxious  character,  and  to  such  an  extent,  that  they  produce  headache, 
nausea,  vomiting,  and  other  pains  and  aches  injurious  to  health,  and 
taint  the  food  of  the  inhabitants. 

All  tlie  defendants  were  proper!}'  convicted.  The  officers  of  the  com- 
pany are  jointly  responsible  for  the  business.  It  is  not  necessary  to 
conviction  that  they  should  have  been  actually'  engaged  in  work  upon  the 
premises.  The  work  is  carried  on  by  employees.  The  directors  and 
officers  are  persons  primarily  responsilile,  and  therefore  the  proper 
ones  to  be  prosecuted.  A  fine  can  be  collected  against  the  defendant 
company,  and  therefore  it  is  subject  to  prosecution. 


COMMONWEALTH    lk   MILLER. 

Supremp:  Coijkt  of  Pennsylvania,  1890. 

[Reported  139  Fa.  77.] 

Williams,  J.^  The  defendants  own  and  operate  a  refinery  where 
crude  petroleum  and  its  products  are  prepared  for  market.  There  are 
four  acres  within  the  enclosure  fronting  on  the  Ohio  river.  The  Pitts- 
burgh &  Western  Railroad  passes  in  front  of  it,  along  the  river's  edge. 
The  Cleveland  &  IMttsburgh  Railroad  runs  upon  the  street  directly  in 
the  rear.  The  city  of  Allegheny,  like  its  sister  city  Pittsburgh,  owes 
its  growth  and  prosperity  to  the  extent  of  its  manufacturing  interests, 

1  Part  of  the  opinion  only  is  given. 


SECT.  III.]  COMMONWEALTH   V.   MILLER.  523 

and  the  river  front  is  almost  wholh- given  over  to  these  great  industries. 
The  indictment  charges  that  the  defendants'  refinerv  is  a  public  and 
common  nuisance,  liecanse  of  the  emission  therefrom  of  certain  noxious 
and  offensive  smells  and  vapors,  and  because  the  oils  and  gases  stored 
and  used  therein  are  inflammable,  explosive,  and  dangerous.  The  jury, 
under  the  instructions  of  the  court,  found  the  defendants  guilty,  and 
the  sentence  which  has  been  pronounced  requires  the  abatement  or 
destruction  of  a  plant  in  which  some  three  hundred  thousand  dollars 
are  said  to  be  invested,  and  which  gives  employment  to  seventy-five 
men.  The  assignments  of  error  are  quite  numerous,  but  the  important 
questions  raised  are  few. 

The  first  four  assignments,  the  sixth,  ninth,  tenth,  and  sixteenth, 
may  be  considered  together,  as  they  relate  more  or  less  directly  to  the 
same  subject.  The  le&rned  judge  had  his  attention  directed  by  the 
written  points  to  the  definition  of  a  public  nuisance,  and  to  the  circum- 
stances under  which  tlie  defendants'  refinery  had  been  established  and 
maintained  for  many  years  ;  and  he  instructed  the  jury  that  the  charac- 
ter of  the  location  where  the  refinery  was  established,  tlie  nature  and 
importance  of  the  business,  the  length  of  time  it  had  been  in  operation, 
the  capital  invested,  and  the  influence  of  the  business  upon  the  growth 
and  prosperity  of  the  communitj',  were  no  defence  to  an  indictment  for 
nuisance.  Among  other  expressions  used  by  him  are  the  following: 
'•It  is  no  defence  to  an  indictment  for  a  common  nuisance  that  the 
business  complained  of  has  been  in  operation  many  years."  "  I  do 
not  think  the  size  of  an  establishment  makes  any  difference."  And 
attain  :  "  Neither  is  it  a  defence  in  anv  measure  that  the  business  is  a 
useful  one,"  etc.  If  it  had  been  an  admitted  or  an  established  fact  that 
the  business  of  the  defendants  was  a  common  nuisance,  and  they  had 
attempted  to  justify  its  maintenance,  these  instructions  would  have 
been  appropriate  ;  but,  the  question  before  the  juiy  was  whether  the 
business  was  a  nuisance.  The  decision  of  that  question  depended  upon 
a  knowledge  of  all  the  circumstances  peculiar  to  the  business,  the  place, 
its  surroundings,  and  the  employments  of  the  persons  in  the  vicinity. 
While  no  one  of  these,  nor  all  together,  would  justify'  the  maintenance 
of  a  nuisance,  the}'  might  be  sufficient,  and  the}^  certainly  were  compe- 
tent evidence  from  which  the  jury  might  determine  whether  the  defend-. 
ants'  refinery  was  a  common  nuisance  at  the  place  where  it  was  located, 
and  this  was  tbe  question  to  be  determined  by  the  trial.  They  might 
make,  therefore,  or  contribute  to  make,  a  defence  to  the  indictment  try- 
ing. This  distinction  between  an  effort  to  justify  an  admitted  or  estab- 
lished nuisance,  and  a  denial  that  the  business  complained  of  amounts 
to  a  nuisance,  was  evidently  in  the  mind  of  the  learned  judge,  but,  in 
the  haste  that  attends  jury  trials,  he  failed  to  place  it  clearl}'  before  the 
jury.  He  did  say  that  the  facts  referred  to  had  "  weight,  and  are  to  be 
considered  in  determining  the  degree  of  the  injury  produced,  and 
whether  the  effects  arc  so  annoying,  so  productive  of  inconvenience 


524  COMMONWEALTH   W.    MILLER.  [CHAP.  V. 

and  discomfort,  tliat  it  can  be  said  to  be  really  so  prejudicial  to  the 
public  as  to  be  a  nuisance,"  but,  following  an  explicit  statemeni  that 
these  same  facts  were  "  no  defence  to  an  indictment  for  erecting  and 
maintaining  a  nuisance,"  such  as  tliey  were  then  trying,  the  jury  was 
left  without  an  adequate  presentation  of  the  defence. 

Tliat  such  facts  are  proper  for  consideration  and  may  make  a  defence, 
lias  been  long  and  well  settled  :  Wood  on  Nuis.,  §  430  The  same  rule 
was  ai)plied  in  this  state  in  Huckenstine's  App.,  70.  Pa.  102;  and  in 
Commonwealth  v.  Reed,  34  Pa.  275,  The  character  of  the  business 
complained  of  must  be  determined  in  view  of  its  own  peculiar  location 
and  surroundings,  and  not  by  the  application  of  any  abstract  prin- 
ciple. Wood  r.  Sutcliffe,  IG  Jur.  75.  In  the  case  last  cited.  Lord 
Cranworth  referred  to  a  case  at  nisi  prius.  in  which  he  had  instructed 
the  jury  to  consider,  not  only  whether  the  quantity  of  smoke  complained 
of  would  amount  to  a  nuisance,  considered  abstractly,  but  "  whether  it 
is  a  nuisance  to  a  person  living  in  Shields,"  which  was  the  name  of  the 
town  in  which  the  business  was  conducted.  It  was  in  this  respect  that 
the  instructions  complained  of  in  the  first,  second,  and  third  specifica- 
tions were  inadequate.  Tliey  gave  the  genei-al  rule  without  the  qualifi- 
cations which  the  situation  of  the  defendants'  refinery  entitled  him  to. 
The  right  to  pure  air  is,  in  one  sense,  an  absolute  one,  for  all  persons 
have  the  right  to  life  and  health,  and  such  a  contamination  of  the  air  as 
is  injurious  to  health  cannot  be  justified  ;  but,  in  another,  sense,  it  is 
relative,  and  depends  upon  one's  surroundings.  Peo[)le  who  live  in 
great  cities  that  are  sustained  by  manufacturing  enterprises  must  neces- 
sarilj-  be  subject  to  many  annoyances  and  positive  discomforts,  by 
reason  of  noise,  dust,  smoke,  and  odors,  more  or  less  disagreeable, 
produced  by  and  resulting  from  the  business  that  supports  the  city. 
The}-  can  only  be  relieved  from  them  by  going  into  the  open  country. 
The  defendants  had  a  right  to  have  the  character  of  their  business 
determined  m  the  light  of  all  the  surrounding  circumstances,  including 
the  character  of  Alleghen}-  as  a  manufacturing  city,  and  the  manner  of 
the  use  of  the  river  front  for  manufacturing  purposes.  If,  looked  at  in 
this  way,  it  is  a  common  nuisance,  it  should  be  removed  ;  if  not,  it  may 
be  conducted  without  subjecting  the  proprietors  to  the  pecuniar}^  loss 
which  its  removal  would  involve. 


SECT.  III.]  EEGINA    V.    EANDALL.  525 

REGIlNA  V.   RANDALL. 
Winchester  Assizes.     1842. 
[Reported  Car.  Sp  M.    496.] 

Indictment  for  i  nuisance  in  building  and  continuing  a  wharf  in  the 
navigable  river  Itchen.     Plea,  not  guiltj-. 

For  the  prosecution,  it  was  proved  that  the  wharf  was  built  between 
higii  and  low  water-mark,  and  projected  over  a  portion  of  the  river  on 
which  boats  formerlj"  passed. 

For  the  defence,  it  was  shown  that,  before  the  erection  of  the  wharf, 
there  was  no  means  of  unloading  trading  vessels  in  the  river,  except  by 
lightening  them  in  the  middle  of  the  stream,  and  then  getting  them  at 
high  water  on  to  the  mud  between  high  and  low  water-mark.  Since  the 
erection  of  the  wharf  in  question  such  vessels  had  been  unloaded  at  it, 
and  thus  the  centre  of  the  river  was  kept  clear,  and  the  general  navi- 
gation improved. 

It  was  contended  for  the  prosecution  that,  in  point  of  law,  the  ver- 
dict must  be  for  the  crown,  if  the  jury  should  find  that  the  wharf 
covered  an}-  part  of  the  soil  of  the  river  over  which  boats  formerly 
navigated.  For  the  defendant,  it  was  urged  that,  although  the  wharf 
covered  a  portion  of  the  river  over  which  boats  formerly  went,  yet,  that 
it  was  for  the  jury  to  sa}-  whether  in  fact  any  sensible  nuisance  or  im- 
pediment to  the  navigation  of  the  river  by  the  public  had  been  occa- 
sioned by  the  act  of  the  defendant ;  and  that,  in  coming  to  their 
conclusion,  the  jury  were  justified  in  taking  into  consideration  the  effect 
produced  by  the  building  and  use  of  the  wharf  in  keeping  clear  the 
channel  of  the  river.  The  cases  of  Rex  v.  Russell,  6  B.  &  C.  566  ; 
Rex  V.  Ward,  4  A.  &  E.  384;  and  Rex  v.  Tindall,  6  A.  &  E.  143, 
were  cited. 

WiGHTMAN,  J.  (in  summing  up),  left  it  to  the  jury  to  say  whether 
the  wharf  itself  occasioned  any  hinderance  or  impediment  whatever  to 
the  navigation  of  the  river  by  any  description  of  vessels  or  boats ;  and 
told  them  that  the}'  were  not  to  take  into  their  consideration  the  cir- 
cumstance that  a  benefit  had  resulted  to  the  general  navigation  of  the 
river  by  the  mid-channel  being  kept  clear,  as  proved  by  the  defendant's 
witnesses. 

The  jury,  however,  could  not  agree  upon  their  verdict ;  and,  after 
being  locked  up  throughout  the  night,  were  discharged. 


526  NOTE.  [chap.  v. 


REX  V.    ROBERT   OF   HERTHALE. 

Shropsuire  Eyre.     1203. 
[1  Selden  Soc.  31.] 

Robert  of  Herthale,  arrested  for  having  in  self-defence  slain  Roger, 
Swein's  son,  who  had  slain  five  men  in  a  fit  of  madness,  is  committed 
to  the  sheriff  that  he  ma}-  be  in  custody  as  before,  for  the  King  must 
be  consulted  about  this  matter. 


NOTE. 

Northampton  Iter.     1328. 
[Reported  Fitz.  Abr.  Coron.  361.] 


Note  that  when  a  man  is  acquitted  before  the  justices  errant  for 
death  of  a  man  so//  defendendo,  the  process  is  such  that  he  shall  have 
the  writ  of  the  Chief  Justice,  within  which  writ  shall  be  contained  all 
the  record  of  his  acquittal,  to  the  Chancellor,  who  shall  make  him  his 
writ  of  pardon  without  speaking  to  the  King  by  course  of  law.  Such  a 
man  is  bailable  after  the  acquittal,  etc. 


NOTE. 

1346. 

[Reported  Y.  B.  21  Edw.  3,  17.] 

Note  that  a  man  was  found  guilty  that  he  had  killed  another  se 
defendendo  ;  and  yaX.  his  chattels  shall  be  forfeited  though  his  life  shall 
be  saved.     And  the  cause  was  because  at  Common  Law  a  man  was 


SECT.  III.j  •  NOTE.  527 

hanged  in  such  a  case  as  above,  just  as  if  he  had  done  it  felonioush*;  and 
though  the  king  now  b}'  the  statute  ^  has  released  his  life,  his  chattels 
remain  as  at  common  law. 


MEMORANDUM. 

1347. 

[Reported  Fitz.  Ahr.  Coron.  261.]  v 

Where  a  man  justifies  the  death  of  another,  as  by  warrant  to 
arrest  him,  and  he  will  not  obey  him,  or  that  he  comes  to  his  house  to 
commit  burglary  and  the  like,  if  the  matter  be  so  found,  the  justices  let 
him  go  quit  without  the  King's  pardon  ;  it  is  otherwise  where  a  man 
kills  another  by  misfortune,  etc. 


NOTE. 

Newgate.     1368. 

[Reported  43  Lib.  Assis.  31.] 

Note  that  at  the  delivery  made  at  Newgate  before  Knivet  and 
LoDEL,  JJ.,  it  was  found  by  the  verdict  that  a  chaplain  killed  a  man  se 
defendendo.  And  the  Judges  asked  how  ;  and  they  said  that  the  de- 
ceased pursued  him  with  a  stick  and  hit  him  ;  but  the  other  struck 
back  and  killed  him.  And  they  said  that  the  defendant  might  have 
fled  from  the  assailant  if  he  would.  And  therefore  the  Judges  held 
him  a  felon,  and  said  that  he  was  bound  to  flee  as  far  as  he  could 
to  save  his  life.     And  the  chaplain  was  adjudged  to  the  Ordinary,  etc. 

^  Statute  of  Gloucester,  6  Edw.  1,  ch.  9. 

The  King  commandeth  that  no  writ  sliall  be  granted  out  of  the  Chancery  for  the 
death  of  a  man  to  enquire  whether  a  man  did  kill  another  by  misfortune,  or  in  his  own 
defence,  or  in  otlier  manner  without  felony ;  but  he  shall  be  put  in  prison  until  the 
coming  of  the  justices  in  eyre  or  justices  assigned  to  the  gaol-delivery,  and  shall  put 
himself  upon  the  country  before  them  for  good  and  evil.  In  case  it  be  found  by  the 
country  that  he  did  it  in  his  defence,  or  by  misfortune,  then  by  the  report  of  the  jus- 
tices to  the  King,  the  King  shall  take  him  to  his  grace,  if  it  please  him. 


528  MEMORANDUM.  [CHAP.  V. 

MEMORANDUM. 

Chancery.     1488. 

[Reported  Y.  B.  4  Hen.  7,  2.] 

In  the  chanceiy  it  was  moved  that  one  was  indicted  because  he 
killed  a  man  se  ipsum  defendendo,  etc.  And  the  Chancellor  said  that 
the  indictment  should  be  removed  into  the  King's  Bench,  and  that  he 
would  grant  a  pardon  of  common  grace  unto  the  party  according  to 
their  form. 

And  it  was  suggested  b}-  the  Sergeants  at  the  bar  that  there  was 
no  need  of  having  any  pardon  in  this  case  ;  for  here  the  Justices  would 
not  ari'aign  him,  but  dismiss  him,  &c.  ;  but  if  the  indictment  were  for 
felony  and  the  part>-  put  himself  upon  the  inquest  for  good  and  ill 
according  to  the  statute  of  Gloc.  c.  9,  then  if  the  inquest  found  that  he 
did  it  se  defendendo,  the  Justices  would  adjudge  him  to  prison  until  he 
had  a  pardon;  but  here  he  should  be  dismissed,  and  not  lose  his 
goods. 

Fairfax,  J.,  who  was  in  the  Chancer}-,  went  to  his  companions  and 
returned  and  said  that  their  custom  was  to  take  inquest  and  inquire 
whe4;her  he  did  it  se  defendendo  or  not,  and  if  so  found,  lie  lost  his 
goods,  etc.  ;  and  so  in  either  wa}'  he  should  have  a  pardon  b}'  his 
opinion.  And  so  it  seemed  to  the  Chancellor  that  a  pardon  should  be 
granted. 

Note  the  opinion  of  the  Justices  of  the  Bench  against  the  Sergeant's. 


Foster,  C.  L.  273.  Self-defence  naturally  falleth  under  the  head  of 
homicide  founded  in  necessit}',  and  may  be  considered  in  two  different 
views.  It  is  either  that  sort  of  homicide  se  et  sua  defendendo^  which  is 
perfect!}'  innocent  and  justifiable,  or  that  which  is  in  some  measure 
blameable  and  barely  excusable.  The  want  of  attending  to  this  dis- 
tinction hath,  I  believe,  thrown  some  darkness  and  confusion  upon  this 
part  of  the  law. 

The  writers  on  the  Crown  Law,  who.  I  think,  have  not  treated  the 
subject  of  self-defence  with  due  precision,  do  not  in  terms  make  the 
distinction  I  am  aiming  at,  vet  all  agree  that  there  are  cases  in  which  a 
man  may,  without  retreating,  oppose  force  to  force,  even  to  the  death. 
This  I  call  justifiable  self-defence,  they  justifiable  homicide. 

They  likewise  agree  that  there  are  cases  in  which  the  defendant  can- 


SECT.  III.]  '  MEMORANDUM.  529 

not  avail  himself  of  the  plea  of  self-defence  without  showing  that  he 
retreated  as  far  as  he  could  with  safet}",  and  then,  merely  for  the  pres- 
ervation of  liis  own  life,  killed  the  assailant.  This  I  call  self-defence 
culpable,  but  through  the  benignit}-  of  the  law  excusable. 

In  the  case  of  justifiable  self-defence  the  injured  party  may  repel  force 
by  force  in  defence  of  his  pei'son,  habitation,  or  iM'opert}',  against  one 
who  manifestly  intendeth  and  endea^■oreth  by  violence  or  surprise  to 
commit  a  known  felon}'  upon  either.  In  these  cases  he  is  not  obliged 
to  retreat,  but  ma}'  pursue  his  adversary  till  he  findeth  himself  out  of 
danger,  and  if  in  a  conflict  between  them  he  happeneth  to  kill,  such 
killing  is  justifiable. 

The  right  of  self-defence  in  these  cases  is  founded  in  the  law  of  nature, 
and  is  not,  nor  can  be,  superseded  by  an}'  law  of  society.  For  before 
civil  societies  were  formed  (one  may  conceive  of  such  a  state  of  things, 
though  it  is  difficult  to  fix  the  period  when  civil  societies  were  formed), 
I  sa}'  before  societies  were  formed  for  mutual  defence  and  preservation, 
the  right  of  self-defence  resided  in  individuals  ;  it  could  not  reside  else- 
where ;  and  since  in  cases  of  necessity,  individuals  incorporated  into 
societ}',  cannot  resort  for  protection  to  the  law  of  the  society,  that  law 
with  great  propriety  and  strict  justice  considereth  them,  as  still,  in  that 
instance,  under  the  protection  of  the  law  of  nature. 

I  will,  by  way  of  illustration,  state  a  few  cases,  which,  I  conceive, 
are  reducible  to  this  head  of  justifiable  self-defence. 

Where  a  known  felony  is  attempted  upon  the  person,  be  it  to  rob  or 
murder,  here  the  party  assaulted  may  repel  force  by  force  ;  and  even 
his  servant  then  attendant  on  him,  or  any  other  person  present  may 
interpose  for  preventing  mischief;  and  if  death  ensueth,  the  party 
so  interposing  will  be  justified.  In  this  case  nature  and  social  duty 
co-operate. 

A  woman  in  defence  of  her  chastity  may  lawfully  kill  a  person  attempt- 
ing to  commit  a  rape  upon  her.  The  injury  intended  can  never  be  repaired 
or  foi'gotten  ;  and  nature,  to  render  the  sex  amiable,  hath  implanted  in 
the  female  heart  a  quick  sense  of  honor,  the  pride  of  virtue,  which  kin- 
dleth  and  entlameth  at  every  such  instance  of  brutal  lust.  Here  the  law 
of  self-defence  plainl}'  coincideth  with  the  dictates  of  nature. 

An  attempt  is  made  to  commit  arson  or  burglar}'  in  the  habitation  ; 
the  owner,  or  any  part  of  his  family,  or  even  a  lodger  with  him  may 
lawfully  kill  the  assailants  for  preventing  the  mischief  intended.  Here 
likewise  nature  and  social  duty  co-operate. 

I  will  now  proceed  to  that  sort  of  self-defence  which  is  culpable  and 
through  the  benignity  of  the  law  excusable.  And  this  species  of  self- 
defence,  I  choose,  upon  the  authority  of  the  statute  of  Hen.  VIII.,  to 
distinguish  from  the  other  by  the  name  of  homicide  se  defendendo  ni)on 
chance-medley.  The  term  "  chance-medley  "  hath  been  very  improperly 
applied  to  the  case  of  accidental  death,  and  in  vulgar  speech  we  gener- 
ally affix  that  single  idea  to  it.  But  the  ancient  legal  notion  of  homicide 
by  chance-medley  was  when  death  ensued  from  a  combat  between  the 


530  MEMORANDUM.  [CHAP.  V. 

parties  upon  a  sudden  quarrel.  How,  upon  the  special  cireuinstances 
of  tlie  case,  the  species  of  homicide  se  defe7idendo  which  I  am  now 
upon  is  distinguishable  from  that  species  of  felonious  homicide  which 
we  call  manslaughter  will  be  presentl}'  considered. 

The  difference  between  justifiable  and  excusable  self-defence  appear- 
eth  to  me  to  be  plainly,  supposed  and  pointed  out  bj^  the  statute  I  have 
just  mentioned  ;  for,  after  reciting  that  it  had  been  doubted  whether  a 
person  killing  another  attempting  to  rob  or  murder  him  under  the  cir- 
cumstances there  mentioned  should  forfeit  goods  and  chattels,  ''As," 
proceedeth  the  statute,  "any  other  person  should  do  that  b}'  chance- 
medley-  should  happen  to  kill  or  slay  any  other  person  in  his  or  their 
defence,"  it  enacteth  that  in  the  cases  first  mentioned  the  party  killing 
shall  forfeit  nothing,  but  shall  be  discharged  in  like  nianner  as  if  he 
were  acquitted  of  the  death. 

He  who,  in  the  case  of  a  mutual  conflict,  would  excuse  himself  upon 
the  foot  of  self-defence,  must  show  that  before  a  mortal  stroke  given 
he  had  declined  any  farther  combat  and  retreated  as  far  as  he  could 
with  safet}' ;  and  also  that  he  killed  his  adversary  through  mere  neces- 
sity, and  to  avoid  immediate  death.  If  he  faileth  in  either  of  these 
circumstances  he  will  incur  the  penalties  of  manslaughter. 

The  authorities  I  shall  cite  will  serve  to  explain  these  principles,  and 
in  some  measure  fix  the  boundaries  between  the  cases  of  manslaughter 
and  excusable  self-defence. 

A.  being  assaulted  b}-  B.  returneth  the  blow,  and  a  fight  ensueth.  A. 
before  a  mortal  wound  given,  declineth  any  farther  conflict,  and  retreat- 
eth  as  far  as  he  can  with  safety,  and  then,  in  his  own  defence,  killeth 
B.  ;  this  is  excusable' self-defence  ;  though,  saith  Stanford,  A.  had  given 
several  blows  not  mortal  before  his  retreat. 

But  if  the  mortal  stroke  had  been  first  given,  it  would  have  been 
manslaughter. 

The  cases  here  put  suppose  that  the  first  assault  was  made  upon  the 
pai'ty  who  killed  in  his  own  defence.  But  as  in  the  case  of  manslaughter 
upon  sudden  provocations,  where  the  parties  fight  on  equal  terms,  all 
malice  apart,  it  mattereth  not  who  gave  the  first  blow  ;  so,  in  this  case 
of  excusable  self-defence,  I  think  the  first  assault  in  a  sudden  affray, 
all  malice  apart,  will  make  no  difference,  if  either  party  quitteth  the 
combat  and  retreateth  before  a  mortal  wound  be  given.  But  if  the  first 
assault  be  upon  malice,  which  must  be  collected  from  circumstances, 
and  the  assailant,  to  give  himself  some  color  for  putting  in  execution 
the  wicked  purposes  of  his  heart,  retreateth,  and  then  turneth  and  kill- 
eth, this  will  be  murder.  If  he  had  killed  without  retreating  it  would 
undoubtedlj'  have  been  so  ;  and  the  craft  of  flying  rather  aggravateth 
than  excuseth,  as  it  is  a  fresh  indication  of  the  malitia  alread}'  mentioned, 
the  heart  deliberately'  bent  upon  mischief. 

The  other  circumstance  necessary  to  be  proved  in  a  plea  of  self- 
defence  is  that  the  fact  was  done  from  mere  necessity,  and  to  avoid 
immediate  death.     To  this  purpose  I  will  cite  a  case  adjudged  upon 


SECT.  III.]  KEGINA    V.    HEWLETT.  531 

great  deliberation.     It  was  the  case  of  one  Nailor,  which  came  on  at 
O.  B.  in  Apr.  1704,  before  Holt,  Tracy,  and  Bury. 

The  prisoner  was  indicted  for  the  murder  of  his  brother,  and  the  case 
upon  evidence  appeared  to  be,  that  tlie  prisoner  on  the  night  the  fact 
was  committed  came  home  drunk.  His  father  ordered  liim  to  go  to 
bed,  which  he  refused  to  do  ;  whereupon  a  scuffle  happened  betwixt  the 
father  and  son.  The  deceased,  who  was  then  in  bed,  hearing  the  dis- 
turbance got  up,  and  fell  upon  the  prisoner,  threw  him  down,  and  beat 
him  upon  the  ground  ;  and  there  kept  him  down,  so  that  he  could  not 
escape  nor  avoid  the  blows  ;  and  as  they  were  so  striving  together  the 
prisoner  gave  the  deceased  a  wound  with  a  penknife  ;  of  which  wound 

he  died. 

The  judges  present  doubted,  whether  this  was  manslaughter  or  se 
defendendo^  and  a  special  verdict  was  found  to  the  effect  before  set 
forth. 

After  Michaelmas  term,  at  a  conference  of  all  the  judges  of  England, 
it  was  unanimously  holden  to  be  manslaughter  ;  for  tliere  did  not  appear 
to  be  any  inevitable  necessity  so  as  to  excuse  the  killing  in  this  manner. 


ANONYMOUS. 

[Reported  Kelyng,  58.] 

If  a.  hath  malice  against  B.  and  meeteth  him  and  striketh  him,  and 
then  B.  draweth  at  A.,  and  A.  flyeth  back  until  he  come  to  a  wall,  and 
then  kills  B.,  this  is  murder,  notwithstanding  his  flying  to  the  wall ;  for 
the  craft  of  flying  shall  not  excuse  the  malice  which  he  had,  nor  shall 
any  such  device  to  wreak  his  malice  on  another,  and  think  to  be  excused 
by  law,  avail  him  anything,  but  in  such  case  the  malice  is  enquirable, 
and  if  that  be  found  by  the  jury,  then  his  flight  is  so  far  from  excusing 
the  crime,  that  it  aggravates  it. 


REGINA   V.    HEWLETT. 
Bristol  Assizes.     1858. 

[Reported  1  Foster  and  Finlason,  9L] 

Wounding  with  intent.  The  prisoner  was  indicted  for  wounding 
with  intent  to  do  grievous  bodily  harm  to  the  prosecutor.  It  appeared 
that  the  prisoner,  with  a  knife,  struck  at  one  Withy.  The  prosecutor 
interfered  and  cauglit  the  blow  intended  for  Withy  on  his  arm. 

Crowder,  J.     This  will  not  sustain  the  charge  of  wounding  with 


532  ROWE    V.    UNITED    STATES.  [CHAP,  V. 

intent  to  do  grievous  bodily  liarm  to  the  prosecutor,  but  he  may  be 
convicted  of  unlawfully  wounding. 

It  appeared  that  the  prosecutor,  Withy  and  two  women,  who  had 
been  drinking  together,  met  the  prisoner  at  midnight  on  the  highway. 
Some  words  passed  between  them,  when  Withy  struck  the  prisoner. 
The  prisoner  then  made  the  blow,  which  was  the  subject  of  the  charge. 
It  was  contended  for  him  that,  under  the  circumstances,  he  was  justi- 
fied m  doing  so. 

Crowder,  J.  (to  the  jury).  Unless  the  prisoner  apprehended  rob- 
bery or  some  similar  offence,  or  danger  to  life  or  serious  bodily  danger 
(not  simply  being  knocked  down),  he  would  not  be  justified  in  using 
the  knife  in  self-defence. 

2iof,  guilty. 


ROWE   V.   UNITED   STATES. 
Supreme  Court  of  the  United  States,  1896. 

[Reported  164  U.  S.  546.] 

Harlan,  J.  W' e  think  that  these  portions  of  the  charge  (to  which  the 
accused  duly  excepted)  were  well  calculated  to  mislead  the  jury.  They 
expressed  an  erroneous  \aew  of  the  law  of  self-defense.  The  duty  of  the 
jury  was  to  consider  the  case  in  the  light  of  all  the  facts.  The  evidence 
on  behalf  of  the  government  tended  to  show  that  the  accused  sought 
a  difficulty  with  someone;  that  on  behalf  of  the  accused,  would  not 
justify  any  such  conclusion,  but  rather  that  he  had  the  reputation  of 
being  a  peaceable  and  law-abiding  man.  But  the  evidence  on  both 
sides  was  to  the  effect  that  the  deceased  used  language  of  an  offensive 
character  for  the  purpose  of  provoking  a  difficulty  with  the  accused, 
or  of  subjecting  him  to  the  indignity  of  a  personal  insult.  The  offen- 
sive words  did  not,  it  is  true,  legally  justify  the  accused  in  what  he  did 
—  the  evadence  of  the  government  tending  to  show  that  "he  kicked 
at  deceased,  hitting  him  lightly  on  the  lower  part  of  the  leg";  that  on 
the  part  of  the  accused  tending  to  show  that  he  "kicked  at"  the  de- 
ceased and  "probably  struck  him  lightly."  According  to  the  evidence 
of  the  defense,  the  accused  then  "  stepped  back,  and  leaned  up  against 
the  counter,"  indicating  thereby,  it  may  be,  that  he  neither  desired  nor 
intended  to  pursue  the  matter  further.  If  the  jury  believed  the  evidence 
on  behalf  of  the  defense,  they  might  reasonably  have  inferred  from  the 
actions  of  the  accused  that  he  did  not  intend  to  make  a  \aolent  or  dan- 
gerous personal  assault  upon  the  deceased,  but  only,  by  kicking  at  him 
or  kicking  him  lightly,  to  express  his  indignation  at  the  offensive  Ian- 


SECT.  III.]  KOWE    V.    UMTED    STATES.  533 

guage  of  the  deceased.  It  should  have  been  submitted  to  the  jury 
whether  the  act  of  the  accused  in  stepping  back  and  leaning  against  the 
counter,  not  in  an  attitude  for  personal  conflict,  was  intended  to  be,  and 
should  have  been  reasonably  interpreted  as  being,  a  withdrawal  by 
the  accused  in  good  faith  from  further  controversy  with  the  deceased. 
On  the  contrary,  the  court,  in  effect,  said  that  if,  because  of  words  used 
by  the  deceased,  the  accused  kicked  at  or  kicked  the  deceased,  how- 
ever lightly,  and  no  matter  how  offensive  those  words  were,  he  put 
himself  in  a  position  to  make  the  killing  manslaughter,  even  if  the 
taking  of  life  became,  by  reason  of  the  suddenness,  rapidity,  and  fierce- 
ness of  the  assault  of  the  deceased,  absolutely  necessary  to  save  his  own. 
By  numerous  quotations  from  adjudged  cases,  the  court,  by  every 
form  of  expression,  pressed  upon  the  jury  the  proposition  that  "  a  per- 
son who  has  slain  another  cannot  urge  in  justification  of  the  killing  a 
necessity  produced  by  his  own  unlawful  and  wrongful  acts."  But  that 
abstract  principle  has  no  application  to  this  case,  if  it  be  true  —  as  the 
evidence  on  behalf  of  the  defense  tended  to  show  —  that  the  first  real 
provocation  came  from  the  deceased  when  he  used  towards  the  accused 
language  of  an  offensive  character,  and  that  the  accused  immediately 
after  kicking  at  or  lightly  kicking  the  deceased,  signified  by  his  conduct 
that  he  no  longer  desired  controversy  with  his  adversary;  whereupon 
the  deceased,  despite  the  efforts  of  the  accused  to  retire  from  further 
contest,  sprang  at  the  latter,  with  knife  in  hand,  for  the  purpose  of  tak- 
ing life,  and  would  most  probably  have  accomplished  that  object,  if 
the  accused  had  not  fired  at  the  moment  he  did.  Under  such  circum- 
stances, did  the  law  require  that  the  accused  should  stand  still,  and 
permit  himself  to  be  cut  to  pieces,  under  the  penalty  that  if  he  met  the 
unlawful  attack  upon  him  and  saved  his  own  life,  by  taking  that  of  his 
assailant,  he  would  be  guilty  of  manslaughter?    We  think  not. 

If  a  person,  under  the  provocation  of  ofl^ensive  language,  assaults  the 
speaker  personally,  but  in  such  a  way  as  to  show  that  there  is  no  in- 
tention to  do  him  serious  bodilv  harm,  and  then  retires  under  such  cir- 
cumstances  as  show  that  he  does  not  intend  to  do  anything  more,  but 
in  good  faith  withdraws  from  further  contest,  his  right  of  self-defense 
is  restored  when  the  person  assaulted,  in  \nolation  of  law,  pursues  him 
with  a  deadly  weapon  and  seeks  to  take  his  life  or  do  him  great  bodily 
harm.  In  Parker  v.  The  State,  88  Alabama,  4,  7,  the  court,  after  advert- 
ing to  the  general  rule  that  the  aggressor  cannot  be  heard  to  urge  in  his 
justification  a  necessity  for  the  killing  which  was  produced  by  his  own 
wrongful  act,  said:  "This  rule,  however,  is  not  of  absolute  and  univer- 
sal application.  x\n  exception  to  it  exists  in  cases  where,  although  the 
defendant  originally  provoked  the  conflict,  he  withdraws  from  it  in 
good  faith,  and  clearly  announces  his  desire  for  peace.  If  he  be  pursued 
after  this,  his  right  of  self-defense,  though  once  lost,  re\'ives.  'Of 
course,'  says  Mr.  Wharton,  in  referring  to  this  modification  of  the  rule, 
'there  must  be  a  real  and  horin  fide  surrender  and  withdrawal  on  his 


534  ROWE    V.     UNITED    STATES.  [CIIAP    V. 

part;  for,  if  there  be  not,  then  he  will  continue  to  be  regarded  as  the 
aggressor.'  1  Wliarton's  Cr.  Law  (9th  ed.),  §  486.  The  meaning  of  the 
principle  is  that  the  law  will  always  leave  the  original  aggressor  an 
o])portunity  to  repent  before  he  takes  the  life  of  his  adversary.  Bishop's 
(  T.  Law  (7th  ed.),  §  87L"  Recognizing  this  exception  to  be  a  just  one, 
the  court  properly  said,  in  addition :  "  Due  caution  must  be  observed 
by  courts  and  juries  in  its  application,  as  it  involves  a  principle  which 
is  very  liable  to  abuse.  The  question  of  the  good  or  bad  faith  of  the 
retreating  party  is  of  the  utmost  importance,  and  should  generally  be 
submitted  to  the  jury  in  connection  with  the  fact  of  retreat  itself, 
especially  where  there  is  any  room  for  conflicting  inferences  on  this 
point  from  the  evidence."  Both  parties  to  a  mutual  combat  are  wrong- 
doers, and  the  law  of  self-defense  cannot  be  invoked  by  either,  so  long 
as  he  continues  in  the  combat.  But,  as  said  by  the  Supreme  Court  of 
Iowa  in  State  r.  Dillon,  74  Iowa,  653,  659,  if  one  "  actually  and  in  good 
faith  withdraws  from  the  combat,  he  ceases  to  be  a  wrongdoer;  and 
if  his  adversary  have  reasonable  ground  for  holding  that  he  has  so  with- 
drawn, it  is  sufficient,  even  though  the  fact  is  not  clearly  e^'inced." 
See  also  1  Bishop's  New  Crim.  Law,  §  702;  People  v.  Robertson,  67 
California,  646,  650;  Stoffer's  Case,  15  Ohio  St.,  47.  In  Wharton  on 
Homicide,  §  483,  the  author  says  that  "though  the  defendant  may 
have  thus  provoked  the  conflict,  yet,  if  he  withdrew  from  it  in  good 
faith  and  clearly  announced  his  desire  for  peace,  then,  if  he  be  pur- 
sued, his  rights  of  self-defense  revive." 

We  do  not  mean  to  say  that  the  jury  oirght  to  have  found  that  the 
accused,  after  kicking  the  deceased  lightly,  withdrew  in  good  faith 
from  further  contest  and  that  his  conduct  should  have  been  so  inter- 
preted. It  was  for  the  jury  to  say  whether  the  withdrawal  was  in  good 
faith,  or  was  a  mere  device  by  the  accused  to  obtain  some  advantage 
of  his  adversary:  But  we  are  of  opinion  that,  under  the  circumstances, 
they  might  have  found  that  the  accused,  although  in  the  wrong  when 
he  kicked  or  kicked  at  the  deceased,  did  not  provoke  the  fierce  attack 
made  upon  him  by  the  latter,  with  knife  in  hand,  in  any  sense  that 
would  deprive  him  altogether  of  the  right  of  self-defense  against  such 
attack.  If  the  accused  did,  in  fact,  withdraw  from  the  combat,  and 
-  intended  so  to  do,  and  if  his  conduct  should  have  been  reasonablv  so 
interpreted  by  the  deceased,  then  the  assault  of  the  latter  with  a  deadly 
weapon,  with  the  intent  to  take  the  life  of  the  accused  or  to  do  him 
great  bodily  harm,  entitled  the  latter  to  the  benefit  of  the  principle 
announced  in  Beard  v.  United  States,  158  JJ.  S.  550,  564,  in  which  case 
it  was  said:  "The  defendant  was  where  he  had  a  right  to  be  when  the 
deceased  advanced  upon  him  in  a  threatening  manner  and  with  a 
deadly  weapon;  and  if  the  accused  did  not  provoke  the  assault,  and 
had  at  the  time  reasonable  grounds  to  believe,  and  in  good  faith  be- 
lieved, that  the  deceased  intended  to  take  his  life  or  to  do  him  great 
bodily  harm,  he  was  not  obliged  to  retreat,  nor  to  consider  whether  he 


SECT.  III.]  ROWE    V.    UNITED    STATES.  535 

could  safely  retreat,  but  was  entitled  to  stand  his  ground  and  meet  any 
attack  made  upon  him  with  a  deadly  weapon,  in  such  a  way  and  with 
such  force  as,  under  all  the  circumstances,  he,  at  the  moment,  hon- 
estly believed,  and  had  reasonable  grounds  to  believe,  was  necessary 
to  save  his  own  life  or  to  protect  himself  from  great  bodily  injury." 

The  charge,  as  above  quoted,  is  liable  to  other  objections.  The 
court  said  that  both  the  accused  and  the  deceased  had  a  right  to  be 
in  the  hotel,  and  that  the  law  of  retreat  in  a  case  like  that  is  different 
from  what  it  would  be  if  they  had  been  on  the  outside.  Still,  the 
court  said  that,  under  the  circumstances,  both  parties  were  under  a  duty 
to  use  all  reasonable  means  to  avoid  a  collision  that  would  lead  to  a 
deadly  conflict,  such  as  keeping  out  of  the  affray,  or  by  not  going  into 
it,  or  "by  stepping  to  one  side";  and  if  the  accused  could  have  saved 
his  life,  or  protected  himself  against  great  bodily  harm,  by  inflicting  a 
less  dangerous  wound  than  he  did  upon  his  assailant,  or  "if  he  could 
have  paralyzed  that  arm,"  without  doing  more  serious  injury,  the  law 
commanded  him  to  do  so.  In  other  words,  according  to  the  theory  of 
the  charge,  although  the  deceased  sprang  at  the  accused,  with  knife  in 
hand,  for  the  purpose  of  cutting  him  to  pieces,  yet  if  the  accused  could 
have  stepped  aside  or  paralyzed  the  arm  of  his  assailant,  his  killing 
the  latter  was  not  in  the  exercise  of  the  right  of  self-defense.  The  ac- 
cused was  where  he  had  a  right  to  be,  and  the  law  did  not  require  him 
to  step  aside  when  his  assailant  was  rapidly  advancing  upon  him  with 
a  deadly  weapon.  The  danger  in  which  the  accused  was,  or  believed 
himself  to  be,  at  the  moment  he  fired  is  to  some  extent  indicated  by 
the  fact,  proved  by  the  government,  that  immediately  after  he  disabled 
his  assailant  (who  had  two  knives  upon  his  person)  he  said  that  he,  the 
accused,  was  himself  mortally  wounded  and  wished  a  physician  to  be 
called.  The  accused  was  entitled,  so  far  as  his  right  to  resist  the  attack 
was  concerned,  to  remain  where  he  was,  and  to  do  whatever  was  neces- 
sary or  what  he  had  reasonable  grounds  to  believe  at  the  time  was 
necessary,  to  save  his  life  or  to  protect  himself  from  great  bodily  harm. 
And  under  the  circumstances,  it  was  error  to  make  the  case  depend 
in  whole  or  in  part  upon  the  inquiry  whether  the  accused  could,  by 
stepping  aside,  have  avoided  the  attack,  or  could  have  so  carefully 
aimed  his  pistol  as  to  paralyze  the  arm  of  his  assailant  without  more 
seriously  wounding  him. 

Without  referring  to  other  errors  alleged  to  have  been  committed, 
the  judgment  below  is  reversed  and  the  case  is  remanded  for  a  new 
trial. 

Reversed. 

Brown  and  Peckham,  JJ.,  dissented. 


536  STOFFEB  V.    STATE.  [CHAP.  V. 

STOPFER  V.   STATE. 
Supreme  Court  ok  Ohio.     18C4. 

[Reported  15  Ohio  ^tute,  47.] 

Rannet,  J.^  From  the  bill  of  exceptions  it  appears  that,  after  the 
state  had  given  evidence  tending  to  prove  that  the  plaintiff  made  an 
assault  upon  Webb  in  the  street,  with  the  intent  to  murder  him  with  a 
knife,  and  that  in  the  conflict  which  ensued,  Webb  was  killed  b}-  him, 
the  plaintiff  in  error  gave  evidence  tending  to  prove  that  he  desisted 
from  the  conflict,  declined  further  combat,  and  retreated  rapidly  a  dis- 
tance of  one  hundred  and  fifty  feet,  and  took  refuge  in  the  house  of  a 
stranger,  where  he  shut  and  held  the  door  ;  that  Webb,  his  brother,  and 
one  Dingman  immediately  pursued,  throwing  stones  at  liim,  and  crying 
"  Kill  him  !  "  as  he  retreated,  and,  forcibly  opening  the  door,  they  entered 
the  house  and  assaulted  him,  and  in  the  conflict  which  immediately 
ensued,  Webb  was  killed. 

Upon  this  state  of  the  evidence,  counsel  for  the  plaintiff'  in  error 
requested  the  court  to  instruct  the  jury  that  the  killing  of  Webb  would 
be  excusable,  although  the  accused  should  have  made  the  assault  upon 
him  with  the  malicious  intent  of  killing  him,  if  the  jury  should  find  that, 
before  Webb  had  received  any  injury,  the  accused  desisted  from  the 
conflict,  and  in  good  faith  declined  further  combat,  and  retreated  to  a 
place  which  he  might  reasonably  regard  as  a  place  of  security,  and  that 
Webb  and  those  in  concert  with  him,  immediately  pursued  and  forcibly 
entered  such  place,  and  there  made  an  assault  upon  the  accused,  in  such 
manner  as  to  warrant  him  in  believing  that  his  life  was  in  danger  at  the 
hands  of  Webb,  and  without  deliberation  or  malice,  and  to  save  his 
own  life,  he  took  that  of  Webb. 

This  instruction  the  court  refused  to  give,  but,  in  substance,  charged 
the  jury  that,  under  such  circumstances,  the  accused  would  be  guilty 
of  manslaughter,  provided  they  "  should  regard  the  conduct  of  Webb, 
from  the  commencement  of  the  conflict  in  the  street  to  the  time  of  the 
conflict  in  the  house,  as  continuous." 

'  The  difference  between  the  instruction  asked  and  that  given  is  easily 
appreciated.  The  one  makes  the  conduct  of  the  accused  in  declining, 
in  good  faith,  further  conflict,  and  retreating  to  a  place  of  supposed 
security  from  the  attacks  of  Webb,  decisive  of  his  right  to  defend  him- 
self there,  when  afterward  assaulted  by  Webb  and  those  in  concert 
with  him,  and,  if  necessary  to  save  his  own  life,  without  malice  or  .pre- 
meditation to  take  that  of  Webb  :  while  the  other  makes  the  conduct 
of  Webb  the  test  whether  the  conflict  had  so  far  terminated  as  to  restore 
the  accused  to  his  right  of  self-defence,  and  denies  him  this  right,  if  the 
conduct  of  Webb,  from  the  conflict  in  the  street  to  that  in  the  house, 

^  Part  of  the  case,  not  involving  a  que.stion  of  justification,  is  omitted. 


SECT.  III.]  STOFFEK    V.    STATE.  537 

was  to  be  regarded  as  continuous.  We  are  not  permitted  to  regard 
this  jetreat  of  the  accused,  as  either  colorable,  or  made  to  gain  an 
advantage,  with  a  view  of  renewing  the  assault  upon  AVebb.  The  in- 
struction requested  assumed  that  it  must  have  been  made  with  the  bona 
fide  purpose  of  abandoning  the  conflict ;  and  in  the  instruction  given, 
the  jurv  were  charged  that  if  the  attack  upon  Webb  in  the  street  was 
murderous,  the  fact  that  the  accused  "  repented  and  fled,  .  .  .  intend- 
ing to  quit  the  combat,  and  abandoning  all  murderous  purpose,"  would 
have  no  further  eflTect  than  to  mitigate  the  crime  to  manslaughter. 

Upon  the  precise  question  made  in  this  case,  very  little  light  is  thrown 
by  actual  adjudications  ;  and  it  is  not  to  be  denied  that  some  difference 
of  opinion  has  ol)tained  among  elementary  writers  upon  criminal  law. 
The  learned  and  humane  Sir  Matthew  Hale  has  expressed  an  opinion 
upon  the  very  point,  in  accordance  with  the  instruction  requested  in  the 
court  below.  He  says  :  "  Suppose  that  A.  by  malice  makes  a  sudden 
assault  upon  B.,  who  strikes  again,  and  pursuing  hard  upon  A.,  A. 
retreats  to  the  w-all,  and,  in  saving  his  own  life  kills  B.  ;  some  have 
held  this  to  be  murder,  and  not  se  defendeudo,  because  A.  gave  the  fii-st 
assault.  But  Mr.  Dalton  thinketh  it  to  be  se  defendeudo,  though  A. 
made  the  first  assault,  either  'with  or  without  malice^  and  then  retreated. 
It  seems  to  me,  that  if  A.  did  retreat  to  the  wall  upon  a  real  intent  to 
save  his  life,  and  then  merel}-  in  his  own  defence  killed  B.,  that  it  is  sc 
defendendo,  and  with  this  agrees  Stamford's  P.  C.  lib.  1.  c.  7,  fol.  15a. 
But  if  on  the  other  side,  A.,  knowing  his  advantage  of  strength,  or  skill, 
or  weapon,  retreated  to  the  wall  merely'  as  a  design  to  protect  himself, 
under  the  shelter  of  the  law,  as  in  his  own  defence,  but  really  intending 
to  kill  B.,  then  it  is  murder  or  manslaughter,  as  the  circumstance  of 
the  case  requires."     1  Hale's  P.  C.  479,  480. 

Sergeant  Hawkins,  however,  thinks  this  opinion  too  favoi'able,  and' 
insists  that  the  one  who  gives  the  first  blow  cannot  be  permitted  to 
kill  the  other,  even  after  retreating  to  the  wall ;  because  the  necessity 
to  which  he  is  at  last  reduced  was  brought  upon  himself.  1  Hawk. 
P.  C.  87. 

Later  English  writers  have  generally  contented  themselves  with  stat- 
ing the  opposing  opinions  of  these  eminent  authors,  without  adding 
anything  material  upon- the  subject.  4  Bl.  Com.  186;  1  Russ.  on 
Crimes,  662. 

In  our  own  country,  Mr.  Bishop,  in  his  work  on  criminal  law,  has 
examined  the  whole  subject  witii  learning  and  ability,  and  coinciding, 
as  we  understand  liim,  in  the  opinion  expressed  by  Lord  Hale,  he  thus 
expresses  his  own  conclusion:  "The  space  for  repentance  is  always 
left  open.  And  when  the  combatant  does  in  good  faith  withdraw  as  far 
as  he  can,  reall}^  intending  to  abandon  the  conflict,  and  not  mereh'  to 
gain  fresh  strength  or  some  new  advantage  for  an  attack,  but  the  other 
will  pursue  him,  then,  if  taking  life  becomes  inevitable  to  save  life,  he 
is  justified."     2  Bishop  on  Crim.  Law,  s.  556. 

But  if  the  question  cannot  bo  said  to  be  settled  upon  autliority,  we 


538  STOPFER  V.    STATE.  [CHAP.  V. 

think  its  solution  upon  principle  very  obvious,  in  the  light  of  doctrines 
upon  which  all  are  agreed.  It  is  very  certain  that  while  the  party  who 
first  commences  a  malicious  assault  continues  in  the  combat,  and  does 
not  put  into  exercise  the  duty  of  withdrawing  in  good  faith  from  the 
place,  although  he  may  be  so  fiercely  pressed  that  he  cannot  retreat,  or 
is  thrown  upon  tlie  ground  or  driven  to  the  wall,  he  cannot  justif}- 
taking  the  life  of  his  adversary,  however  necessary  it  may  be  to  save 
his  own  ;  and  must  be  deemed  to  have  brought  upon  himself  the  neces- 
sit}'  of  killing  his  fellow-man.  '•  For  otherwise,"  as  said  by  Ch.  J. 
Hale,  '•  we  should  have  all  cases  of  murder  or  manslaughter,  b}'  way 
of  interpretation,  turned  into  se  defeiidendo."     1  Hale,  P.  C.  482. 

There  is  ever}'  reason  for  saying  that  the  conduct  of  the  accused, 
relied  upon  to  sustain  such  a  defence,  must  have  been  so  marked,  in 
the  matter  of  time,  place,  and  circumstance,  as  not  onlv  clearly  to 
evince  the  withdrawal  of  the  accused,  in  good  faith,  from  the  combat, 
but  also  such  as  fairl}-  to  advise  his  adversary'  that  bis  danger  had 
passed,  and  to  make  his  conduct  thereafter,  the  pursuit  of  vengeance, 
rather  than  measures  taken  to  repel  the  original  assault.  But  when  this 
is  made  to  appear,  we  know  of  no  principle,  however  criminal  the  pre- 
vious'conduct  of  the  accused  may  have  been,  which  allows  him  to  be 
hunted  down  and  his  life  put  in  jeopard}',  and  denies  him  the  right  to 
act  upon  that  instinct  of  self-preservation  which  spontaneously  arises 
alike  in  the  bosoms  of  the  just  and  the  unjust.  There  is  no  ground  for 
saying  that  this  right  is  forfeited  by  previous  misconduct ;  nor  did  the 
court  below  proceed  upon  any  such  idea,  since  the  jurj'  were  charged, 
that  if  the  conflict  which  ensued  upon  the  first  assault  had  ended,  and 
a  new  one  was  made  by  Webb  and  his  associates  in  the  house,  the 
accused,  under  reasonable  apprehension  of  loss  of  life  or  great  bodilj' 
'harm,  would  be  justified  in  taking  the  life  of  his  assailant.  The  error 
of  the  court  consisted  in  supposing  that  whatever  might  be  done  b}'  the 
accused  to  withdraw  himself  from  the  contest,  the  conflict  would  never 
end  so  long  as  Webb  made  continuous  efforts  to  prolong  it.  If  this  is 
a  sound  view  of  the  matter,  the  condition  of  the  accused  would  not 
have  been  bettered  if  he  had  fled  for  miles  and  had  finalh'  fallen  down 
with  exhaustion,  provided  Webb  was  continuous  in  his  efforts  to  over- 
take him.  But  this  view  is  consistent  with  neither  the  letter  nor  spirit 
of  the  legal  principle.  A  conflict  is  the  work  of  at  least  two  persons, 
and  when  one  has  wholly  withdrawn  from  it,  that  conflict  is  ended  ;  and 
it  cannot  be  prolonged  b}-  the  efforts  of  liim  who  remains  to  bring  on 
another.  It  is  ver^-  true,  that  the  original  assault  may  have  aroused  the 
passions  which  impel  the  pursuer  to  take  vengeance  upon  his  adversary- ; 
and  if  death  should  ensue  from  his  act,  it  might  be  entirelv  sufficient  to 
mitigate  the  crime.  But  it  would  still  be  a  crime,  and  the  law  cannot 
for  a  moment  tolerate  the  execution  of  vengeance  b}'  private  parties. 
If  this  were  allowed,  such  passions  might  be  as  effectually  aroused  by 
words  as  blows;  and,  instead  of  the  principle,  so  vital  to  the  peace  of 
society',  that  the  law  alone  must  be  relied  upon  for  the  redress  of  all 


SECT,  III.]  STOPFER    V.    STATE.  539 

injuries,  we  should  have  avengers  of  injuries,  real  or  supposed,  execut- 
,ing  their  punishments  upon  victims  stripped  of  all  legal  power,  what- 
ever might  be  the  necessity,  of  defending  their  own  lives.  It  is  needless 
to  say  that  such  a  course  would  be  alike  destructive  to  public  order 
and  private  security-,  and  would  be  substituting  for  the  empire  of  the 
laws,  a  system  of  force  and  violence. 

A  line  of  distinction  must  be  somewhere  drawn,  which,  leaving  the 
originator  of  a  combat  to  the  necessary  consequences  of  his  illegal  and 
malicious  conduct,  shall  neither  impose  upon  him  punishments  or  dis- 
abilities unknown  to  the  law,  nor  encourage  his  adversary  to  wreak 
vengeance  upon  him,  rather  than  resort  to  the  legal  tribunals  for  redress  ; 
and  we  think,  upon  pi'inciple  and  the  decided  weight  of  authority-,  it  lies 
precisely  where  we  have  already  indicated.  While  he  remains  in  the 
conflict,  to  whatever  extremity  he  ma}'  be  reduced,  he  cannot  be  ex- 
cused for  taking  the  life  of  his  antagonist  to  save  his  own.  In  such 
case,  it  may  be  rightfullv  and  truthfully  said  that  he  brought  the  neces- 
sity upon  himself  by  his  own  criminal  conduct.  But  when  he  has  suc- 
ceeded in  wholly  withdrawing  himself  from  the  contest,  and  that  so 
palpably  as,  at  the  same  time,  to  manifest  his  own  good  faith  and  to 
remove  an}'  just  apprehension  from  his  adversary,  he  is  again  remitted 
to  his  right  of  self-defence,  and  ma\'  make  it  effectual  by  opposing  force 
to  force,  and,  when  all  other  means  have  failed,  ma}'  legally  act  upon 
the  instinct  of  self-preservation,  and  save  his  own  life  by  sacrificing  the 
life  of  one  who.  persists  in  endangering  it. 

If  these  views  are  correct,  their  application  to  the  case  under  consi- 
deration, is  very  obvious.  Both  the  instruction  requested,  and  that 
given,  are  based  upon  the  hypothesis  that  the  accused  had,  in  good 
faith  and  abandoning  all  criminal  purpose,  withdrawn  from  the  combat ; 
that  he  had  not  only  retreated  to  the  wall,  but  behind  the  wall ;  and  had 
not  only  gone  from  the  view  of  his  adversary,  but  to  a  place  of  sup- 
posed security  from  his  attacks.  In  all  this,  his  conduct  was  strictly 
lawful.  In  the  language  of  the  books,  he  "had  actually  put  into  exer- 
cise the  duty  of  withdrawing  from  the  place."  It  is  very  true  that  the 
evidence  tended  to  implicate  him  in  a  very  serious  crime  in  the  first 
attack  upon  Webb,  for  which  his  subsequent  conduct  could  not  atone, 
and  for  which  he  was  then,  and  still  is,  liable  to  prosecution  and  punish- 
ment ;  but  when  Webb  and  his  associates  afterwards  pursued  and  at- 
tacked him,  they  were  wholly  in  the  wrong,  and  necessarily  took  upon 
themselves  all  the  hazards  of  such  an  unlawful  enterprise. 


540  PEOPLE  V.    BUTTON.  [CHAP.  V. 

PEOPLE  V.  BUTTON. 
Supreme  Court  of  California.     1895. 

[Reported  106  Cal.  628.] 

Garoutte,  J.  The  appellant  was  cliarged  with  the  crime  of  murder 
and  convicted  of  manslaughter.  He  now  appeals  from  the  judgment 
and  order  denying  his  motion  for  a  new  trial. 

For  a  perfect  understanding  of  the  principle  of  law  involved  in  this 
appeal  it  becomes  necessary  to  state  in  a  general  waj*  the  facts  leading 
up  to  the  homicide.  As  to  the  facts  thus  summarized  there  is  no 
material  contradiction.  The  deceased,  the  defendant,  and  several  other 
parties  were  camped  in  the  mountains.  They  had  been  drinking,  and, 
except  a  bo}-,  were  all  under  the  influence  of  liquor  more  or  less,  the 
defendant  to  some  extent,  the  deceased  to  a  great  extent.  The  de- 
ceased was  lying  on  the  ground  with  his  head  resting  upon  a  rock, 
when  a  dispute  arose  between  him  and  the  defendant,  and  the  defend- 
ant thereupon  kicked  or  stamped  him  in  the  face.  The  assault  was 
a  vicious  one,  and  the  injuries  of  deceased  occasioned  thereb}'  most 
serious.  One  eye  was  probably  destroyed,  and  some  bones  of  the  face 
broken.  An  expert  testified  that  these  injuries  were  so  serious  as 
likel}"  to  produce  in  the  injured  man  a  dazed  condition  of  mind,  impair- 
ing the  reasoning  faculties,  judgment,  and  powers  of  perception.  Im- 
mediatel}'  subsequent  to  this  assault  the  defendant  went  some  distance 
from  the  camp,  secured  his  horse,  returned,  and  saddled  it,  with  the 
avowed  intention  of  leaving  the  camp  to  avoid  further  trouble.  Tbe 
time  thus  occupied  in  securing  his  horse  and  preparing  for  departure 
may  he  estimated  at  from  five  to  fifteen  minutes.  The  deceased's  con- 
duct and  situation  during  the  absence  of  defendant  is  not  made  plain 
b}'^  the  evidence,  but  he  was  probabl}'  still  lying  where  assaulted.  At 
this  period  of  time,  the  deceased  advanced  upon  defendant  with  a  knife, 
which  was  taken  from  him  by  a  bystander,  whereupon  he  seized  his 
gun  and  attempted  to  shoot  the  defendant,  and  then  was  himself  shot 
by  the  defendant  and  immediately  died.  There  is  also  some  further 
evidence  that  deceased  ordered  his  dog  to  attack  the  defendant,  and 
that  defendant  shot  at  the  dog,  but  this  evidence  does  not  appear  to 
be  material  to  the  question  now  under  consideration. 

Upon  this  state  of  facts  the  court  charged  the  jury  as  to  the  law  of 
the  case,  and  declared  to  them  in  various  forms  the  principle  of  law 
which  is  fairly  embodied  in  the  following  instruction:  ''One  who  has 
sought  a  combat  for  the  purpose  of  taking  advantage  of  another,  may 
afterward  endeavor  to  decline  an}'  further  struggle,  and,  if  he  really 
and  in  good  faith  does  so  before  killing  the  person  with  whom  he 
sought  the  combat  for  such  purpose,  he  may  justify  the  killing  on  the 
same  sround  as  he  misflit  if  he  liad  nr)t  orisjinallv  sought  such  combat 
for  such  purpose,  provided  that  yon  also  believe  that  his  endeavor  was 


SECT.  III.]  PEOPLE    V.   BUTTON.  541 

of  such  a  character,  so  indicated  as  to  have  reasonabl}'  assured  a  rea- 
sonable man  that  he  was  endeavoring  in  good  faith  to  decline  further 
combat,  unless  you  further  believe  that  in  the  same  combat  in  which 
the  fatal  shot  was  fired,  and  prior  to  the  defendant  endeavoring  to 
cease  further  attack  or  quarrel,  the  deceased  received  at  the  hands  of 
the  defendant  such  inj.uries  as  deprived  him  of  his  reason  or  his  capacity 
to  receive  impressions  regarding  defendant's  design  and  endeavor  to 
cease  further  combat." 

It  is  to  that  portion  of  the  foregoing  instruction  relating  to  the 
capacity  of  the  deceased  to  receive  impressions  caused  b}'  the  defend- 
ant's attack  upon  him  that  appellant's  counsel  has  directed  his  assault ; 
and  our  attention  will  be  addressed  to  its  consideration.  The  recital 
of  facts  indicates,  to  some  extent  at  least,  that  the  assault  upon  de- 
ceased was  no  part  of  the  combat  subsequently  arising  in  which  he 
lost  his  life  ;  yet  the  events  were  so  closely  connected  in  point  of  time 
that  the  court  was  justified  in  submitting  to  the  jury  the  question  of 
fact  as  to  whether  or  not  the  entire  trouble  was  but  one  affray  or 
combat.  Section  197  of  the  Penal  Code,  wherein  it  says,  in  effect,  that 
tlie  assailant  must  really  and  in  good  faith  endeavor  to  decline  an}-  fur- 
ther struggle  befoi-e  he  is  justified  in  taking  life,  is  simply  declarative 
of  the  common  law.  It  is  but  the  reiteration  of  a  well-settled  principle, 
and  in  no  wise  broadens  and  enlarges  the  right  of  self-defence  as  de- 
clared by  courts  and  text-writers  ever  since  the  days  of  Lord  Hale.  It 
follows  that  the  declaration  of  the  code  above  cited  gives  us  no  light 
upon  the  matter  at  hand,  and,  from  an  examination  of  man}'  books 
and  cases,  we  are  unable  to  find  a  single  authority  directly  in  point 
upon  the  principle  of  law  here  involved.  It  is  thus  apparent  that  the 
question  is  both  interesting  and  novel. 

The  point  at  issue  may  be  made  fairly  plain  by  the  following  illustra- 
tions :  If  a  party  should  so  violently  assault  another  by  a  blow  or  stroke 
upon  the  head  as  to  render  that  party  incapable  of  understanding  or 
appreciating  the  conditions  surrounding  him,  and  the  party  assailed 
should  thereupon  pursue  the  retreating  assailant  for  many  hours  and 
miles  with  a  deadly  weapon  and  with  deadly  intent,  and  upon  overtak- 
ing him  should  proceed  to  kill  him,  would  the  first  assailant,  the  party 
retreating,  be  justified  in  taking  the  then  aggressor's  life  in  order  to 
save  his  own?  In  other  words,  did  the  first  assault,  producing  the 
effect  that  it  did  debar  defendant  (after  retreating  under  the  circum- 
stances above  depicted)  from  taking  his  opponent's  life,  even  though 
that  opponent  at  the  time  held  a  knife  at  his  throat  with  deadly  intent; 
or,  putting  it  more  concisel}',  did  the  aggressor  b}'  his  first  assault  for- 
feit his  life  to  the  party  assaulted  ?  Or,  viewing  the  case  from  the 
other  side,  should  a  man  be  held  guiltless  who  without  right  assaults 
another  so  viciously  as  to  take  away  his  capacity  to  reason,  to  deprive 
him  of  his  mind,  and  then  kill  him,  because,  when  so  assaulted,  his 
assailant  is  unable  to  understand  that  the  attacking  i)arty  is  retreating 
and  has  withdrawn  from  the  combat  in  good  faith?    In  other  words, 


542  PEOPLE    V.   BUTTON.  [CHAI.  V. 

maj'  a  defendant  so  assault  another  as  to  deprive  him  of  his  mind,  and 
then  kill  him  in  self-defence  when  he  is  in  such  a  condition  that  he  is 
unable  to  understand  that  his  assailant  has  withdrawn  in  good  faith 
from  the  combat? 

In  order  for  an  assailant  to  justify  the  killing  of  his  adversary  he 
must  not  only  endeavor  to  really  and  in  good  faith  withdraw  from  the 
combat,  but  he  must  make  known  his  intentions  to  his  adversary'.  His 
secret  intentions  to  withdraw  amount  to  nothing.  They  furnish  no 
guide  for  his  antagonist's  future  conduct.  The}'  indicate  in  no  way 
that  the  assault  may  not  be  repeated,  and  afford  no  assurance  to  the 
party  assailed  that  the  need  of  defence  is  gone.  This  principle  is  fairly 
illustrated  in  Hale's  Pleas  of  the  Crown,  page  482,  where  the  author 
saj's  :  "  But  if  A  assaults  B  first,  and  upon  that  assault  B  re-assaults 
A,  and  that  so  tiercel}'  that  A  cannot  retreat  to  the  wall  or  other  non 
ultra  without  danger  of  his  life,  nay,  though  A  falls  upon  the  ground 
upon  the  assault  of  B  and  then  kills  B,  this  shall  not  be  interpreted  to 
Ite  se  defendendoP  The  foregoing  principle  is  declared  sound  for  the 
reason  that,  though  A  was  upon  the  ground  and  in  great  danger  of  his 
life  at  the4;ime  he  killed  B,  still  he  was  the  assailant,  and  at  the  time 
of  the  killing  had  done  nothing  to  indicate  to  the  mind  of  B  that 
he  had  in  good  faith  withdrawn  from  the  combat,  and  that  B  was  no 
longer  in  danger.  In  Stoffer  v.  State,  15  Ohio  St.  47,  86  Am.  Dec. 
470,  in  speaking  to  this  question,  the  court  said:  "There  is  ever}' 
reason  for  saying  that  the  conduct  of  the  accused  relied  upon  to  sustain 
such  a  defence  must  have  been  so  marked  in  the  matter  of  time,  place, 
and  circumstance  as  not  only  clearly  to  evince  the  withdrawal  of  the 
accused  in  good  faith  from  the  combat,  but  also  such  as  fairly  to  advise 
his  adversary  that  his  danger  had  passed,  and  to  make  his  conduct 
thereafter  the  pursuit  of  vengeance  ,  rather  than  measures  taken  to 
repel  the  original  assault."  It  is  also  said  in  State  v.  Smith,  10  Nev. 
106,  citing  the  Ohio  case:  "  A  man  who  assails  another  with  a  deadly 
weapon  cannot  kill  his  adversary  in  self-defence  until  he  has  fairly 
notified  him  by  his  conduct  that  he  has  abandoned  the  contest ;  and, 
if  the  circumstances  are  such  that  he  cannot  so  notify  him,  it  is  his 
fault,  and  he  must  take  the  consequences." 

It  is,  therefore,  made  plain  that  knowledge  of  the  withdrawal  of  the 
assailant  in  good  taith  from  the  combat  must  be  brought  home  to  the 
assailed.  He  must  be  notified  in  some  way  that  danger  no  longer 
threatens  him,  and  that  all  fear  of  further  harm  is  groundless.  Yet, 
in  considering  this  question,  the  assailed  .must  be  deemed  a  man  of 
ordinary  understanding  ;  he  must  be  gauged  and  tested  by  the  common 
rule  —  a  reasonable  man;  his  acts  and  conduct  must  be  weisfhed  and 
measured  in  the  light  of  that  test,  for  such  is  the  test  applied  wherever 
the  right  of  self-defence  is  made  an  issue.  His  naturally  demented 
condition  will  not  excuse  him  from  seeing  that  his  assailant  has  with- 
drawn from  the  attack  in  good  faith.  aSTeither  his  passion  nor  his 
cowardice  will  be  allowed  to  blind  him  to  the  fact  that  his  assailant  is 


SECT,  III.]  PEOPLE    V.    BUTTON.  543 

running  awa}-,  and  all  danger  is  over.  If  the  subsequent  acts  of  the 
attacking  party  be  such  as  to  indicate  to  a  reasonable  man  that  he 
in  good  faith  has  withdrawn  from  the  combat,  they  must  be  held  to  so 
indicate  to  the  party  attacked.  Again,  the  part}'  attacked  must  also 
act  in  good  faith.  He  must  act  in  good  faith  toward  the  law,  and 
allow  the  law  to  punish  the  offender.  He  must  not  continue  the  com- 
bat for  the  purpose  of  wreaking  vengeance,  for  then  he  is  no  better 
than  his  adversarj.  The  law  will  not  allow  him  to  sa}',  "  I  was  not 
aware  that  my  assailant  had  withdrawn  from  the  combat  in  good  faith," 
if  a  reasonable  man  so  placed  would  have  been  aware  of  such  with- 
drawal. If  the  part}'  assailed  has  eyes  to  see,  he  must  see  ;  and,  if  he 
has  ears  to  hear,  he  must  hear.  He  has  no  right  to  close  his  e^'es  or 
deaden  his  ears. 

This  brings  us  directly  to  the  consideration  of  the  point  in  the  case 
raised  by  the  charge  of  the  court  to  the  jury.  While  the  deceased  had 
eyes  to  see  and  ears  to  hear  he  had  no  mind  to  comprehend,  for  his 
mind  was  taken  from  him  bv  the  defendant  at  the  first  assault.  Throuo'h- 
out  this  whole  affra}'  it  must  be  conceded  that  the  deceased  was  guilt}' 
of  no  wrong,  no  violation  of  the  law.  When  he  attempted  to  kill  the 
defendant  he  thought  he  was  acting  in  self-defence,  and  according  to 
his  lights,  he  was  acting  in  self-defence.  To  be  sure,  those  lights, 
supplied  by  a  vacant  mind,  were  dim  and  unsatisfactory,  yet  they 
were  all  the  deceased  had  at  the  time,  and  not  only  were  fur- 
nished by  the  defendant  himself,  but  the  defendant  in  furnishing  them 
forcibly  and  unlawfully  deprived  the  deceased  of  others  which  were 
perfect  and  complete.  But  where  does  the  defendant  stand?  It  can- 
not be  said  that  he  was  guilty  of  no  wrong,  no  violation  of  the  law.  It 
was  he  who  made  the  vicious  attack.  It  was  he  who  was  guiltv  of  an 
unprovoked  and  murderous  assault.  It  was  he  who  unlawfully  brought 
upon  himself  the  necessity  for  killing  the  deceased.  It  cannot  be  pos- 
sible that  in  a  combat  of  this  character  no  crime  has  been  committed 
against  the  law.  Yet  the  deceased  has  committed  no  offence.  Neither 
can  the  defendant  be  prosecuted  for  an  assault  to  commit  murder,  for 
the  assault  resulted  in  the  commission  of  a  homicide  as  a  part  of  the 
affray.  For  these  reasons  we  consider  that  the  defendant  cannot  be 
held  guiltless. 

Some  of  the  earlier  writers  hold  that  one  who  gives  the  first  blow 
cannot  be  perrjitted  to  kill  the  other,  even  after  retreating  to  the  wall, 
for  the  reason  that  the  necessity  to  kill  was  brought  upon  himself.  (1 
Hawkins'  Pleas  of  the  Crown,  87.)  While  the  humane  doctrine,  and 
especially  the  modern  doctrine,  is  more  liberal  to  the  assailant,  and 
allows  him  an  opportunity  to  withdraw  from  the  combat,  if  it  is  done  in 
good  faith,  yet  it  would  seem  that  under  the  circumstances  here  pre- 
sented the  more  rigid  doctrine  should  be  applied.  The  defendant  not 
only  brought  upon  himself  tiie  necessity  for  the  killing,  but,  in  addition 
thereto,  brought  upon  himself  the  necessity  of  killing  a  man  wholly 
innocent  in  the  eyes  of  the  law  ;  not  only  wholly  innocent  as  beino-  a 


544  PEOPLE    V.    BUTTON.  [CHAP.  V. 

person  naturally  non  compos,  but  wholl}'  innocent  by  being  placed  in 
this  unfortunate  condition  of  mind  bj'  the  act  of  the  defendant  himself. 
We  conclude,  therefore,  that  the  instruction  contains  a  sound  principle 
of  law.  The  defendant  was  the  first  wrongdoer ;  he  was  the  only 
wrongdoer;  he  brought  on  the  necessit}'  for. the  killing,  and  cannot  be 
allowed  to  plead  that  necessity  against  the  deceased,  who  at  the  time 
was  non  compos  by  reason  of  defendant's  assault.  The  citations  we 
have  taken  from  Hale,  the  Ohio  case,  and  the  Nevada  case,  all  declare 
that  the  assailant  must  notif\'  the  assailed  of  his  witlidrawal  from  the 
combat  in  good  faith,  before  he  will  be  justified  in  taking  life.  Here 
the  defendant  did  not  so  notif3'the  deceased.  He  could  notnotifj'  him, 
for  by  liis  own  unlawful  act  he  had  placed  it  out  of  his  power  to  give  the 
deceased  such  notice.  Under  tliese  circumstances  he  left  no  room  in 
his  case  for  the  plea  of  self-defence. 

The  court  gave  the  following  instruction  to  the  jury  as  to  the  law 
bearing  upon  the  facts  of  the  case:  "  And  no  man,  by  his  own  lawless 
acts,  can  create  a  necessit}-  for  acting  in  self-defence,  and  then,  upon 
killing  the  person  with  whom  he  seeks  the  difficulty,  interpose  the  plea 
of  self-defence,  subject  to  the  qualification  next  hereinafter  set  out. 
The  plea  of  necessity  is  a  shield  for  those  only  who  are  without  fault  in 
occasioning  it  and  acting  under  it.  The  court  instructs  the  jury  that 
if  you  are  satisfied  that  there  was  a  quarrel  between  the  defendant 
and  deceased,  in  which  the  defendant  was  the  aggressor  and  first  as- 
saulted the  deceased  by  means  or  force  likely  to  produce  and  actually 
producing  great  l)0{lil3'  injury  to  the  deceased,  and  that  the  defendant 
thereafter  in  the  same  quarrel  fatally  shot  the  deceased,  then  you  must 
find  the  defendant  guilty,  subject  to  this  qualification." 

This  instruction  appears  to  have  been  given  subject  to  some  qualifi- 
cation, and  as  tn  the  e^itent  and  character  of  the  qualification  the  record 
is  not  plain.  But,  whatever  it  may  liave  been,  the  vice  of  the  instruc- 
tion could  not  be  taken  away.  The  instruction  is  bad  law,  and  no 
explanation  or  qualification  could  validate  it.  It  is  not  true  that  tiie 
plea  of  necessity  is  a  shield  for  those  only  who  are  without  fault  in 
occasioning  it  and  acting  under  it.  As  we  have  already  seen,  tliis  is 
the  rigid  doctrine  declared  b}-  Sergeant  Hawkins,  but  not  (he  humane 
doctrine  of  Lord  Hale  and  modern  authority.  The  latter  portion  of  the 
instruction  is  in  direct  conflict  with  the  StotTer  case,  already  cited, 
where  the  declaration  of  the  same  principle  in  a  somewhat  different 
form  caused  a  reversal  of  the  judgment.  It  was  there  said  :  "If  this 
is  a  sound  view  of  the  matter,  the  condition  of  the  accused  would  not 
liave  been  bettered  if  he  liad  fled  for  miles,  and  had  finally  fallen  down 
with  exhaustion,  provided  Webb  was  continuous  in  his  efforts  to  over- 
take him.  But  this  view  is  consistent  with  neither  the  letter  nor  the 
spirit  of  the  legal  principle."  The  instruction  assumes  that,  if  the 
defendant  was  the  aggressor,  the  quarrel  could  subsequently  assume  no 
form  or  condition  whereb}-  the  defendant  would  hv  justified  in  taking 
the  life  of  the  i)arty  assailed.     The  law  of  self-defence  is  to  the  contrary, 


SECT.  III.]  PEOPLE    V.    BUTTON.  545 

and  is  clearlj'^  recognized  to  the  contrary  by  the  provision  of  the 
Penal  Code  to  which  we  have  already  referred. 

The  court  also  gave  the  jury  the  following  instruction  to  gnide 
tliem  in  their  deliberations:  "  If  you  find  from  the  evidence  that,  prior 
to  the  time  of  the  shooting  of  the  deceased  by  the  defendant,  they  had 
a  quarrel  and  altercation,  and  that  the  defendant  stamped  or  kicked  the 
deceased  in  the  face,  and  that  defendant  thereafter  really  and  in  good 
faith,  although  he  was  the  assailant,  endeavored  to  decline  any  further 
struggle  before  the  homicide  was  committed,  and  that  [after  the  first 
assault  had  ceased,  and  there  had  an  interval  elapsed  between  said  first 
assault  and  the  final  assault,  making  said  assaults  respective!}',  although 
in  some  degree  related  to  eacli  other,  yet  substantially  distinct  trans- 
actions, each  attended  with  its  own  separate  circumstances]  the  deceased 
procured  his  gun  antl  made  such  an  attempt  to  shoot  defendant  as  gave 
the  defendant  reasonable  ground  to  apprehend  and  fear  that  the  de- 
ceased was  about  to  take  his  life,  or  do  him  great  bodily  injury,  and 
that,  acting  under  such  reasonable  apprehension  alone,  defendant 
shot  the  deceased,  then  you  will  acquit  the  defendant ;  and  this  will  be 
_your  duty,  notwithstanding  the  defendant  may  have  been  in  the  wrong 
in  first  assailing  or  attacking  the  deceased."  That  portion  of  the 
charge  inclosed  in  brackets  embodied  a  modification  of  the  original 
charge,  as  asked  bv  counsel,  and  we  think  should  not  have  been  in- 
serted.  It  had  a  tendency  to  mislead  the  jury,  and  the  instruction  was 
perfectly  sound  without  it.  The  question  as  to  the  capacit}-  of  the 
deceased's  mind  to  understand  and  appreciate  was  not  an  element  in- 
volved in  this  charge,  and  with  that  the  court  was  not  then  dealing  ; 
but  by  the  modification  it  deprived  the  defendant  of  the  right  to  go 
before  the  jury  upon  the  plea  of  self-defence,  if  there  was  but  one 
assault  which  led  up  to  the  homicide.  The  right  of  the  defendant  to 
act  in  self-defence  was  in  no  way  dependent  upon  the  commission  of 
two  assaults.  If  there  was  but  one  assault  which  caused  the  combat, 
even  though  that  assault  was  a  part  of  the  combat,  and  was  made  by 
the  defendant,  still  he  had  the  riglit  of  self-defence  if  his  subsequent 
conduct  was  such  as  to  indicate  to  the  assaulted  party  that  he  had 
withdrawn  bi  good  faith  from  the  struggle.  The  etfect  of  the  modifica- 
tion was  to  plainly  intimate  to  tlie  jury  that,  if  the  wiiole  afl['ray  was  but 
one  connected  quarrel  or  altercation,  then  the  defendant,  under  no  pos- 
sible setof  circumstances,  could  be  justified  in  law  in  kiUing  his  adversary. 
This  is  wrong.  As  to  the  true  solution  of  tlie  question  by  the  jury 
which  the  court  was  then  discussing,  it  was  entirely  immaterial  whether 
or  not  there  was  one  or  two  assaults. 

We  think  the  questions  we  have  discussed  dispose  of  all  material 
matters  raised  upon  the  appeal. 

For  the  foregoing  reasons  the  judgment  and  order  are  reversed  and 
the  cause  remanded  for  a  new  trial. 


546  COMMONWEALTH    V.    DRUM.  [CHAP.  V. 


COMMONWEALTH   v.    DRUM. 

Court  of  Oyer  axd  Termineu,  Pennsylvania.     1868. 

[Reported  58  Pa.  9.] 

William  Drum  was  charged  in  the  Court  of  Quarter  Sessions  of 
Westmoreland  count}'  for  the  murder  of  David  Mohigan.  A  true  bill 
having  been  found  h\  the  grand  jury  of  that  court,  it  was  certifled  into 
the  Court  of  O^er  and  Terminer  of  the  same  count}'. 

Agnew,  J.,  charged  the  jury  as  follows.^  .  .  . 

The  previous  occurrences  on  Monday  niglit  and  Thursda}'  night  fur- 
nished no  justification  or  even  excuse  to  Mohigan  in  making  the  attack 
upon  the  prisoner  on  Thursday  night  at  the  saloon.  This  attack  con- 
stituted a  sufficient  ground  on  part  of  the  prisoner  to  defend  himself  in 
a  proper  manner.  But  this  defencie,  as  I  have  before  said,  must  not 
exceed  the  reasonable  bounds  of  the  necessit}'.  Here  the  jur}'  must 
attend  to  this  important  distinction.  The  argument  of  the  defence  is, 
that  when  the  slayer  is  not  in  fault —  is  not  fighting  at  the  time,  or  has 
given  up  the  fight  —  and  then  slays  his  adversarj',  he  is  vdxcusuble  as  in 
self-defenqe.  But  though  this  may  be  the  case,  it  is  not  always  so. 
The  true  criterion  of  self-defence,  in  such  a  case,  is,  whether  there  ex- 
isted such  a  necessity'  for  killing  the  adversary  as  required  the  slayer  to 
do  it  in  defence  of  his  life  or  in  the  preservation  of  his  person  from 
great  bodily  harm.  If  a  man  approaciies  another  with  an  evident  inten- 
tion of  fighting  him  with  his  fists  onl}-,  and  where,  under  the  circum- 
stances, nothing  would  be  likely  to  eventuate  from  the  attack  but  an 
ordinary  beating,  the  law  cannot  recognize  the  necessity  of  taking  life 
with  a  deadly  weapon.  In  such  a  case  it  would  be  manslaughter ;  and 
if  the  deadly  weapon  was  evidently  used  witii  a  murderous  and  bad- 
hearted  intent,  it  would  even  be  murder.  But  a  blow  or  lilows  are  just 
cause  of  provocation,  and  if  the  circumstances  indicated  to  the  slayer  a 
plain  necessit}'  of  protecting  himself  from  great  bodily  injury,  he  is 
excusable  if  he  slays  his  assailant  in  an  honest  purpose  of  saving 
himself  from  this  great  harm. 

The  right  to  stand  in  self-defence  without  fleeing  has  been  strongly 
asserted  by  the  defence.  It  is  certainl}'  true  that  ever}'  citizen  may 
rightfully  traverse  the  street,  or  may  stand  in  all  proper  places,  and 
need  not  flee  from  every  one  who  chooses  to  assail  him.  Without  this 
freedom  our  liberties  would  be  worthless.  But  the  law  does  not  apply 
this  right  to  homicide.  The  question  here  does  not  involve  the  right  of 
merely  ordinary  defence,  or  the  right  to  stand  wherever  he  may  right- 
fully be,  but  it  concerns  the  right  of  one  man  to  take  the  life  of  another. 
Ordinary  defence  and  the  killing  of  another  evidently  stand  upon  differ- 
ent footing.  When  it  comes  to  a  question  whether  one  man  shall  flee 
or  another  shall  live,  the  law  decides  that  the  former  shall  rather  flee 
than  that  the  latter  shall  die. 

1  Only  so  much  of  the  charge  as  is  concerned  with  the  question  of  self-defenc«  is 
given.  —  Ed. 


SECT.  III.]  STATE    V.    DONNELLY.  547 


STATE  V.  DONNELLY. 
Supreme  Court  of  Iowa.     1886. 

[Reported  69  Iowa,  705.] 

Adams,  C.  J.^  —  The  defendant  shot  his  father,  Patrick  Donnelly, 
with  a  shot-gun,  causing  a  wound  of  which  lie  died  about  two  days 
afterwards.  The  deceased  had  become  very  angry  with  the  defendant, 
and  at  time  of  the  firing  of  the  fatal  shot  was  pursuing  the  defendant 
with  a  pitchfork,  and  the  circumstances  were  such  that  we  think  that 
the  jury  might  have  believed  that  he  intended  to  take  the  life  of  the 
defendant.  On  the  other  hand,  the  circumstances  were  such  that  we 
think  that  the  jury  might  have  believed  that  the  defendant  could  have 
escaped,  and  fully  protected  himself  by  retreating,  and  that  he  had 
reasonable  ground  for  so  thinking. 

The  court  gave  an  instruction  in  these  words  :   "  You  are  instructed 
that  it  is  a  general  rule  of  the  law  that,  where  one  is  assaulted  by 
another,  it  is  the  duty  of  the  person  thus  assaulted  to  retire  to  what  is 
termed  in  the  law  a  wall  or  ditch  before  he  is  justified  in  repelling  sucli 
assault  in  taking  the  life  of  his  assailant.     But  cases  frequently  arise 
where  the  assault  is  made  with  a  dangerous  or  deadly  weapon,  and  in 
so  fierce  a  manner  as  not  to  allow  the  party  thus  assaulted  to  retire 
without  manifest  danger  to  his  life  or  of  great  bodily-  injury ;  in  such 
cases  he  is  not  required  to  retreat."     The  defendant  assigns  the  giving 
of  this  instruction  as  error.     He  contends  that  the  court  misstated  the 
law  in  holding,  by  implication,  that  he  is  excused  from  doing  so  only 
where  it  would  manifestly-  be  dangerous  to  attempt  it.     His  position  is, 
that  the  assailed  is  under  obligation  to  retreat  onl}'  where  the  assault  is 
not  felonious,  and  that  where  it  is  felonious,  as  the  evidence  tends  to 
show  in  this  case,  he  may  stand  his  ground  and  kill  his  assailant,  what- 
ever  his  means  of  retreat  and  escape  might  be,  provided  only  he  had 
reasonable  cause  for  believing  that  if  he  stood  his  ground,  and  did  not 
kill  his  assailant,  his  assailant  would  kill  him,  or  inflict  a  great  bodily 
injur}-.     Under  this  theory  and  the  evidence,  the  jurj-  might  have  found 
that  the  defendant  was  justified  in  killing  his  father,  and  that,  too,  even 
though  there  had  been  other  evidence  showing  that  his  father  was  so 
old  and  decrepit  that  the  defendant  could  have  escaped  him  by  simple- 
walking  away  from  him.     It  is,  perhaps,  not  to  be  denied  that  the 
defendant's  theory  finds  some  support  in   text-books  and  decisions; 
but  in  our  opinion  it  cannot  be  approved.     This  court  has,  to  be  sure, 
held  that  a  person  assailed  in  his  own  house  is  not  bound  to  retreat, 
though  bv  doing  so  he  might  manifestly  secure  his  safety.     State  v. 
Middleham,  62  Iowa,  150.    While  there  is  some  ground  for  contending 
that  the  rule  does  not  fully  accord  with  the  sacredness  which  in  later 
years  is  attached  to  human  life,  the  course  of  decisions  appeared  to  be 

*  Part  of  the  opinion  only  is  given. 


548  STATE    V.    DONNELLY.  [CIIAP.  V, 

such  as  not  to  justif}'  a  departure  from  it.     The  rule  for  which  the 

defendant  contends  seems,  so  far  as  it  finds  support  in  the  autliorities,* 

to  be  based  upon  the  idea  that,  where  a  person  attempts  to  commit  a  I 

felony,  it  is  justifiable  to  take  the  offender's  life  if  that  is  the  only  way  \ 

in  which  he  can  be  prevented  from  consummating  the  felon}'  attempted. 

But  where  a  person  is  assailed  b}-  another  who  attempts  to  takes  his 

life,  or  inflict  great  bodily  injury,  and  the  assailed  can  manifestly  secure 

safety  by  retreating,  then  it  is  not  necessary  to  take  the  life  of  the 

assailant  to  prevent  the  consummation  of  the  felony  attempted.      In 

Roscoe,  Crim.   Ev.   768,   note,   the  annotator  sajs :    "When   a  man 

expects  to  be  attacked,  the  right  to  defend  himself  does  not  arise  until 

he  has  done  everything  to  avoid   that  necessit}-,"  —  citing  People  v. 

Sullivan,  7  N.  Y.  396;  Mitchell  v.  State,  22  Ga.  211  ;    Lyon  v.  State, 

id.  399  ;  Cotton  v.  State,  31   Miss.  504  ;  People  v.  Hurley,  8  Cal.  390  ; 

State  V.  Thompson,  9  Iowa,   188;   U.  S.  v.  Mingo,  2  Curt.  1.     In  our 

opinion  the  court  did  not  err  in  giving  the  instruction  in  question.^ 

1  In  State  v.  Bartlett,  170  Mo.  658,  668,  Sherwood,  P.  J.,  said:  "Defendant,  when 
first  assaulted  and  beaten  hj  Edwards  on  the  street,  was  not  bound  to  retreat  to  his 
office.  He  had  a  right  to  be  where  he  was,  and  the  wrong  of  Edwards  in  assaulting 
and  beating  him  there,  could  not  deprive  him  of  that  right  and  so  this  court  has, 
in  effect,  decided.  [State  i'.  Evans,  124  Mo.  397;  see,  also,  State  v.  Hudspeth,  150 
Mo  lor.  cit.  .3.3,  and  cases  cited.]  Because  the  right  to  go  where  one  will  without  let  or 
hindrance,  despite  of  threats  made,  necessarily  implies  the  right  to  stay  where  one  will 
without  let  or  hindrance.  These  remarks  are  controlled  by  the  thought  of  a  lawful 
right  to  be  in  the  particular  locality  to  which  he  goes,  or  in  which  he  stays. 

"  It  is  true,  human  life  is  sacred,  but  so  is  human  liberty ;  one  is  as  dear  in  the  eye  of 
the  law  as  the  other,  and  neither  is  to  give  way  and  surrender  its  legal  status  in  order 
that  the  other  may  exclusively  exist,  supposing  for  a  moment  such  an  anomaly  to  be 
possible.  In  other  words,  the  wrongful  and  violent  act  of  one  man  shall  not  abolish 
or  even  temporarily  suspend  the  lawful  and  constitutional  right  of  his  neighbor.  And 
this  idea  of  the  non-necessity  of  retreating  from  any  locality  where  one  has  the  right 
to  be,  is  growing  in  favor,  as  all  doctrines  based  upon  sound  reason  inevitably  will, 
and  has  found  voice  and  expression  elsewhere." 


\ 


SECT.  III.]  BEARD    V.    UNITED    STATES.  549 


BEARD    V.  UNITED    STATES. 
Supreme  Court  of  the  United  States.     1894. 
[Reported  158  U.  S.  550.] 

Harlan,  J.^  .  .  .  The  court  below  committed  an  error  of  a  more 
serious  character  when  it  told  the  jury,  as  in  effect  it  did  by  different 
forms  of  expression,  that  if  the  accused  could  have  saved  his  own  life 
and  avoided  taking  the  life  of  Will  Jones  by  retreating  from  and 
getting  out  of  the  way  of  the  latter  as  he  advanced  upon  him,  the  law 
made  it  his  duty  to  do  so ;  and  if  he  did  not,  when  it  was  in  his  power 
to  do  so  without  putting  his  own  life  or  body  in  imminent  peril,  he  was 
guilty  of  manslaughter.  The  court  seemed  to  think  if  the  deceased 
had  advanced  upon  the  accused  while  the  latter  was  in  his  dwelling- 
house  and  under  such  circumstances  as  indicated  the  intention  of  the 
former  to  take  life  or  inflict  great  bodil}'  injury,  and  if,  without  retreat- 
ing, the  accused  had  taken  the  life  of  his  assailant,  having  at  the  time 
reasonable  grounds  to  believe,  and  in  good  faith  believing,  that  his  own 
life  would  be  taken  or  great  bodily  harm  done  him  unless  he  killed  the 
accused,  the  case  would  have  been  one  of  justifiable  homicide.  To 
that  proposition  we  give  our  entire  assent.  But  we  cannot  agree  that 
the  accused  was  under  an}-  greater  obligation,  when  on  his  own 
premises,  near  his  dwelling-house,  to  retreat  or  run  away  from  his 
assailant,  than  he  would  have  been  if  attacked  within  his  dwelling- 
house.  The  accused  being  where  he  had  a  right  to  be,  on  his  own 
premises,  constituting  a  part  of  his  residence  and  home,  at  the  time  the 
deceased  approached  him  in  a  threatening  manner,  and  not  having  by 
language  or  by  conduct  provoked  the  deceased  to  assault  him,  the 
question  for  the  jury  was  whether,  without  fleeing  from  his  adversar}' 
he  had,  at  the  moment  he  struck  the  deceased,  reasonable  grounds  to 
believe,  and  in  good  faith  believed,  that  he  could  not  save  his  life  or 
protect  himself  from  great  bodily  harm  except  bv  doing  what  he  did, 
namely,  strike  the  deceased  with  his  gun,  and  thus  prevent  his  further 
advance  upon  him.  Even  if  the  jury  had  been  prepared  to  answer 
this  question  in  the  aflfirmative  —  and  if  it  had  been  so  answered,  the 
defendant  should  have  been  acquitted  —  they  were  instructed  that  the 
accused  could  not  properly  be  acquitted  on  the  ground  of  self-defence 
if  they  believed  that,  by  retreating  from  his  adversary,  by  "getting 
out  of  the  way,''  he  could  have  avoided  taking  life.  We  cannot  give 
our  assent  to  this  doctrine. 

The  application  of  the  doctrine  of  "  retreating  to  the  wall  "  was  care- 
fully examined  by  the  Supreme  Court  of  Ohio  in  Erwin  v.  State,  29 
Ohio  St.  186,  193,  199.     That  was  an  indictment  for  murder,  the  de- 

1  Only  so  much  of  the  opinion  as  discusses  the  question  of  self-defence  is  given. 
—  En. 


550  BEARD    V.    UNITED    STATES.  [CHAP.  V. 

fendant  being  found  guilty.  The  trial  court  charged  the  jurj^  that  if 
the  defendant  was  in  the  lawful  pursuit  of  his  business  at  the  time  the 
fatal  shot  was  fired,  and  was  attacked  by  the  deceased  under  circum- 
stances denoting  an  intention  to  take  life  or  to  do  great  bodily  harm, 
he  could  lawtulh'  kill  his  assailant  provided  he  used  all  means  "  in  his 
power"  otherwise  to  save  his  own  life  or  prevent  the  intended  harm, 
"  such  as  retreating  as  far  as  he  can,  or  disabling  his  adversary,  with- 
out killing  him,  if  it  be  in  his  power ;  "  that  if  the  attack  was  so 
sudden,  fierce,  and  violent  that  a  retreat  would  not  diminish  but  in- 
crease the  defendant's  danger,  he  might  kill  his  adversary  without  re- 
treating ;  and  further,  that  if  from  the  character  of  the  attack  there 
was  reasonable  ground  for  defendant  to  believe,  and  he  did  honestl}' 
believe,  that  his  life  was  about  to  be  taken,  or  he  was  to  suffer  great 
bodily  harm,  and  that  he  believed  honestly-  that  he  would  be  in  equal 
danger  by  retreating,  then,  if  he  took  the  life  of  the  assailant,  he  was 
excused.     Of  this  charge  the  accused  complained. 

Upon  a  full  review  of  the  authorities  and  looking  to  the  principles 
of  the  common  law,  as  expounded  by  writers  and  courts  of  high 
authorit}',  the  Supreme  Court  of  Ohio  held  that  the  charge  was  errone- 
ous, saying  :  "  It  is  true  that  all  authorities  agree  that  the  taking  of  life 
in  defence  of  one's  person  cannot  be  either  justified  or  excused,  except 
on  the  ground  of  necessity  ;  and  that  such  necessit}'  must  be  imminent 
at  the  time  ;  and  the}'  also  agree  that  no  man  can  avail  himself  of  such 
necessity  if  he  brings  it  upon  himself.  The  question  then  is  simply 
this  :  Does  the  law  hold  a  man  who  is  violently  and  feloniously  as- 
saulted responsible  for  having  brought  such  necessity  upon  himself  on 
the  sole  ground  that  he  failed  to  fl}-  from  his  assailant  when  he  might 
safely  have  done  so?  The  law,  out  of  tenderness  for  human  life  and 
the  frailties  of  human  nature,  will  not  permit  the  taking  of  it  to 
repel  a  mere  trespass,  or  even  to  save  life  where  the  assault  is 
provoked  ;  but  a  true  man  who  is  without  fault  is  not  obliged  to  flv 
from  an  assailant,  who  by  violence  or  surprise  maliciousl}'  seeks  to 
take  his  life  or  to  do  him  enormous  bodily  harm.  Now,  under  the 
charge  below,  notwithstanding  the  defendant  ma}'  iiave  been  without 
fault,  and  so  assaulted,  with  the  necessity  of  taking  life  to  save  his 
own  upon  him  ;  still  the  jury  could  not  have  acquitted  if  they  found  he 
had  failed  to  do  all  in  his  power  otherwise  to  save  his  own  life,  or  pre- 
vent the  intended  harm,  as  retreating  as  far  as  he  could,  etc.  In  this 
case  we  think  the  law  was  not  correctly  stated." 

In  Runyan  v.  State,  57  Indiana,  80,  84,  which  was  an  indictment  for 
murder,  and  where  the  instructions  of  the  trial  court  involved  the 
present  question,  the  court  said  :  "  A  very  brief  examination  of  the 
American  authorities  makes  it  evident  that  the  ancient  doctrine,  as  to 
the  duty  of  a  person  assailed  to  retreat  as  far  as  he  can,  before  he  is 
justified  in  repelling  force  by  force,  has  been  greatly  modified  in  this 
country,  and  has  with  us  a  much  narrower  application  tiian  former!}'. 
Indeed,  the  tendency  of  the  American  mind  seems  to  be  very  strongly 


SECT.  III.]  BEARD    V.    UNITED    STATES.  551 

against  the  enforcement  of  any  rule  which  requires  a  person  to  flee 
when  assailed,  to  avoid  chastisement  or  even  to  save  human  life,  and 
that  tendenc}-  is  well  illustrated  b\'  the  recent  decisions  of  our  courts, 
bearing  on  the  general  subject  of  the  right  of  self-defence.  The  weight 
of  modern  authority,  in  our  judgment,  establishes  the  doctrine  that, 
when  a  person,  being  without  fault  and  in  a  place  where  he  has  a  right 
to  be,  is  violently  assaulted,  he  ma}',  without  retreating,  repel  force  by 
force,  and  if,  in  the  reasonable  exercise  of  his  right  of  self-defence,  his 
assailant  is  killed,  he  is  justifiable,  ...  It  seems  to  us  that  the  real 
question  in  the  case,  when  it  was  given  to  the  jury,  was,  was  the 
defendant,  under  all  the  circumstances,  justified  in  the  use  of  a  deadly 
weapon  in  repelling  the  assault  of  the  deceased?  We  mean  by  this, 
did  the  defendant  have  reason  to  believe,  and  did  he  in  fact  believe, 
that  what  he  did  was  necessar}'  for  the  safet}'  of  his  own  life  or  to 
protect  him  from  great  bodily  harm  ?  On  that  question  the  law  is 
simple  and  easy  of  solution,  as  has  been  already  seen  from  the  authori- 
ties cited  above." 

In  East's  Pleas  of  the  Crown,  the  author,  considering  what  sort  of 
an  attack  it  was  lawful  and  justifiable  to  resist,  even  by  the  death 
of  the  assailant,  says  :  "  A  man  may  repel  force  by  force  in  defence 
of  his  person,  habitation,  or  propertj',  against  one  who  manifestly 
intends  or  endeavors,  by  violence  or  surprise,  to  commit  a  known 
felon}',  such  as  murder,  rape,  robbery,  arson,  burglary,  and  the  like, 
upon  either.  In  these  cases  he  is  not  obliged  to  retreat,  but  may 
pursue  his  adversary  until  he  has  secured  himself  from  all  danger;  and 
if  he  kill  him  in  so  doing,  it  is  called  justifiable  self-defence  ;  as,  on  the 
other  hand,  the  killing  by  such  felon  of  any  person  so  lawfully  defend- 
ing himself  will  be  murder.  But  a  bare  fear  of  any  of  these  oflfences, 
however  well  grounded,  as  that  another  lies  in  wait  to  take  away  the 
party's  life,  unaccompanied  with  any  overt  act  indicative  of  such  an 
intention,  will  not  warrant  in  killing  that  other  by  way  of  pi'evention. 
There  must  be  an  actual  danger  at  the  time."  p.  271.  So  in  Foster's 
Crown  Cases:  "In  the  case  of  justifiable  self-defence,  the  injured 
part}'  may  repel  force  with  force  in  defence  of  his  person,  habitation,  or 
property,  against  one  who  manifestly  intendeth  and  endeavoreth,  with 
violence  or  surprise,  to  commit  a  known  felony  upon  either.  In  these 
cases  he  is  not  obliged  to  retreat,  but  may  pursue  his  adversary  till  he 
findeth  himself  out  of  danger,  and  if,  in  a  conflict  between  them,  he 
happeneth  to  kill,  such  killing  is  justifiable."     c.  3,  p.  273. 

In  Bishop's  New  Criminal  Law,  the  author,  after  observing  that 
cases  of  mere  assault  and  of  mutual  quarrel,  where  the  attacking 
party  has  not  the  purpose  of  murder  in  his  heart,  are  those  to  which 
is  applied  the  doctrine  of  the  books,  that  one  cannot  justify  the  killing 
of  another,  though  apparently  in  self-defence,  unless  he  retreat  to  the 
wall  or  other  interposing  obstacle  before  resorting  to  this  extreme  right, 
says  that  "  where  an  attack  is  made  with  murderous  intent,  the  person 
attacked  is  under  no  duty  to  fly  ;  he  may  stand  his  ground,  and  if  need 


552  BEARD   V.    UNITED    STATES.  [CHAP.  V. 


be,  kill  his  adversary.     And  it  is  the  same  where  the  attack  is  with  ] 

a  deadly  weapon,  for  in  this  case  the  person  attacked  may  well  assume 
that  the  other  intends  murder,  whether  he  does  in  fact  or  not."    Vol.  1,  ,  '''I 

§  850.     The  rule  is  thus  expressed  bj'  Wharton:   "A  man  may  repel  ' 

force  b}'  force  in  the  defence  of  his  person,  habitation,  or  property, 
against  an}'  one  or  many  who  manifestly  intend  and  endeavor  by  vio- 
lence or  surprise  to  commit  a  known  felon\'  on  either.  In  such  case 
he  is  not  compelled  to  retreat,  but  may  pursue  his  adversary  until  he 
finds  himself  out  of  danger,  and  if  in  tlie  contlict  between  them  he 
happen  to  kill  him,  such  killing  is  justifiable."  2  Wharton  on  Crim. 
Law,  §  1019,  7th  rev.  ed.  Phila.  1874.  See  also  Gallagher  v.  State, 
3  Minnesota,  270,  273  ;  Pond  v.  People,  8  Michigan,  150,  177;  State  v. 
Dixon,  75  N.  C  275,  295;  State  v.  Sherman,  16  R.  I.  631  ;  Fields  v. 
State,  32  N.  E.  Rep.  780  ;  Eversole  v.  Commonwealth,  26  S.  W.  Rep. 
816  ;  Haynes  v.  State,  17  Georgia,  465",  483  ;  Long  v.  State,  52  Missis- 
sippi, 23,  35;  Tweedy  v.  State,  5  Iowa,  433  ;  Baker  v.  Commonwealth, 
19  S.  W.  Rep.  975 ;  Tingle  a.  Commonwealth,  11  S.  W.  812  ;  3  Rice's 
Ev.  §  360. 

In  our  opinion  the  court  below  erred  in  holding  that  the  accused, 
while  on  his  premises,  outside  of  his  dwelling-house,  was  under  a  legal 
duty  to  get  out  of  the  wa}-,  if  he  could,  of  his  assailant,  who,  according 
to  one  view  of  the  evidence,  had  threatened  to  kill  the  defendant,  in 
execution  of  that  purpose  had  armed  himself  with  a  deadly  weapon, 
with  that  weapon  concealed  upon  his  person  went  to  the  defendant's 
premises,  despite  the  warning  of  tlie  latter  to  keep  away,  and  by  word 
and  act  indicated  his  purpose  to  attack  the  accused.  The  defendant 
was  where  he  had  the  right  to  be,  when  the  deceased  advanced  upon  him 
in  a  threatening  manner,  and  with  a  deadly  weapon  ;  and  if  the  accused 
did  not  provoke  the  assault  and  had  at  the  time  reasonable  grounds  to 
believe,  and  in  good  faith  believed,  that  the  deceased  intended  to  take 
his  life  or  do  him  great  bodily  harm,  he  was  not  obliged  to  retreat,  nor 
to  consider  whether  he  could  safely  retreat,  but  was  entitled  to  stand 
his  ground  and  meet  any  attack  made  upon  him  with  a  deadlj'  weapon, 
in  such  wa}'  and  with  .such  force  as,  under  all  the  circumstances,  he,  at 
the  moment,  honestly  believed,  and  had  reasonable  grounds  to  believe, 
was  necessary  to  save  his  own  life  or  to  protect  himself  from  great 
bodil}'  injury. 

As  the  proceedings  below  were  not  conducted  in  accordance  with 
these  principles,  the  judgment  must  be  reversed  and  the  cause  re- 
manded with  directions  to  grant  a  new  trial. 

Other  objections  to  the  charge  of  the  court  are  raised  by  the  assign- 
ments of  error,  but  as  the  questions  which  they  present  may  not  arise 
upon  another  trial,  they  will  not  be  now  examined. 

Judgment  reversed} 

<  1  See  Allen  V.  U.  S.,  164  U.S.  492.  In  that  case  Brown,  J.,  said  :  "Nor  is  there  any- 
thing in  the  instruction  of  the  court  that  the  prisoner  was  bound  to  retreat  as  far  as  he 


yECT.  Ill,]  ACERS    V.    UNITED    STATES.  553 

ACERS  V.  UNITED   STATES. 

Supreme  Court  of  the  United  States-     1896. 

[Reported  164  U.  S.  388.] 

Brewer,  J.  Plaintiff  in  error  was  convicted  in  the  District  Court  for 
the  Western  District  of  Arkansas  of  an  assault  with  intent  to  kill,  and 
sentenced  to  the  penitentiary  for  the  term  of  two  years  and  six  months. 
The  undisputed  facts  were  tliese:  Defendant  and  one  Joseph  M.Owens 
had  some  dispute  about  business  affairs,  and  while  returning  together 
to  the  house  where  they  were  both  stopping,  defendant  picked  up  a 
stone  about  three  inches  wide,  nine  inches  long  and  an  inch  and  a  half 
or  two  inches  thick,  and  with  it  struck  Owens  on  the  side  of  the  head, 
fracturing  the  skull.  The  defence  was  that  there  was  no  intent  to  kill; 
that  defendant  acted  in  self-defence  ;  that,  believing  Owens  was  about 
to  draw  a  pistol,  he  picked  up  the  stone  and  pushed  him  down  ;  and 
the  disputed  matters  were  whether  Owens  had  a  pistol,  and  if  so, 
whether  he  attempted  to  draw  it,  or  made  any  motions  suggestive  of 
such  a  purpose.  The  verdict  of  the  }\xYy  was  averse  to  the  contentions 
of  the  defendant. 

The  only  questions  presented  for  our  consideration  arise  on  the  charge 
of  the  court,  and  may  be  grouped  under  four  heads  :  First,  as  to  the 
evidences  of  intent ;  second,  as  to  what  constitutes  a  deadly  weapon ; 
third,  as  to  real  danger ;  and  fourth,  as  to  apparent  danger.  It  may 
be  premised  that  the  exceptions  to  this  charge  are  taken  in  the  careless 
way  which  prevails  in  the  Western  District  of  Arkansas  ;  but  passing 
this  and  considering  the  charge  as  properly  excepted  to,  we  find  in  it  no 
substantial  error.^ 

Third.  With  reference  to  the  matter  of  self-defence  b}'  reason  of  the 
presence  of  a  real  danger,  the  court  charged  that  it  could  not  be  a  past 
danger,  or  a  danger  of  a  future  injury,  but  a  present  danger  and  a 
danger  of  "  great  injury  to  the  person  injui'ed  that  would  maim  him,  or 
that  would  be  permanent  in  its  character,  or  that  might  produce  death." 
In  this  we  think  nothing  was  stated  incorrectly,  and  that  there  was  a 
fair  definition  of  what  is  necessary  to  constitute  self-defence  by  reason 
of  the  existence  of  a  real  dang-er. 


o^ 


could  before  slaying  his  assailant  that  conflicts  with  the  ruling  of  this  court  in  Beard  v. 
United  States,  158  U.  S.  .5.50.  That  was  the  case  of  an  assault  upon  the  defendant 
upon  his  own  premises,  and  it  was  held  that  the  obligation  to  retreat  was  no  greater 
than  it  would  have  been  if  he  had  been  assailed  in  his  own  house.  So,  too,  in  the  case 
of  Alberty  v.  United  States,  162  U.  S.  499,  the  defendant  found  the  deceased  trying  to 
obtain  access  to  his  wife's  chamber  through  a  window,  in  the  night-time,  and  it  was 
held  that  he  might  repel  the  attempt  by  force,  and  was  under  no  obligation  to  retreat 
if  the  deceased  attacked  him  with  a  knife.  The  general  duty  to  retreat  instead  of  kill- 
ing when  attacked  was  not  touched  upon  in  these  cases.  Whart.  on  Homicide,  §  485." 
—  Ed. 

1  The  discussion  of  the  first  two  questions  is  omitted.  —  Ed. 


554  ACERS    V.    UNITED    STATES.  [CHAP.  V. 

Neither,  fourthly,  do  we  find  anything  to  condemn  in  the  instructions 
in  reference  to  self-defence  based  on  an  apparent  danger.  Several 
approved  authorities  are  quoted  from  in  which  the  doctrine  is  correctly 
stated  that  it  is  not  sufficient  that  the  defendant  claims  that  he  believed 
he  was  in  dansrer,  but  that  it  is  essential  that  there  were  reasonable 
grounds  for  such  belief,  and  then  the  rule  was  summed  up  in  this  way  : 

"  Now  these  cases  are  along  the  same  line,  and  they  are  without 
limit,  going  to  show  that,  as  far  as  this  proposition  of  apparent  danger 
is  concerned,  to  rest  upon  a  foundation  upon  which  a  conclusion  that 
Is  reasonable  can  be  erected  there  must  be  some  overt  act  being  done 
by  the  party  which  from  its  character,  from  its  nature,  would  give  a 
reasonable  man,  situated  as  was  the  defendant,  the  ground  to  believe  — 
reasonable  ground  to  believe  —  that  there  was  danger  to  his  life  or  of 
deadly  violence  to  his  person,  and  unless  that  condition  existed  then 
there  is  no  ground  upon  which  this  proposition  can  stand  ;  there  is 
nothing  to  which  the  doctrine  of  apparent  danger  could  apply." 

Counsel  criticise  the  use  of  the  words  "  deadly  violence,"  as  though 
the  court  meant  thereby  to  limit  the  defence  to  such  cases  as  showed 
an  intention  on  the  part  of  the  person  assaulted  to  take  the  life  of  the 
defendant,  but  obviously  that  is  not  a  fair  construction  of  the  language, 
not  only  because  danger  to  life  is  expressly  named,  but  also  because  in 
other  parts  of  the  charge  it  had  indicated  that  what  was  meant  by  those 
words  was  simply  great  violence.  This  is  obvious  from  this  language, 
found  a  little  preceding  the  quotation  :  "  '  When  from  the  nature  of  the 
attack.'  You  look  at  the  act  being  done,  and  you  from  that  draw  an 
inference  as  to  whether  there  was  reasonable  ground  to  believe  that 
there  was  a  design  upon  the  part  of  Owens  in  this  case  to  destroy  the 
life  of  the  defendant  Acers  or  to  commit  an}'  great  violence  upon  his 
person  at  the  time  he  was  struck  hy  the  rock.  '  When  from  the  nature 
of  the  attack.'  That  implies  not  that  he  can  act  upon  a  state  of  case 
where  there  is  a  bare  conception  of  fear,  but  that  there  must  exist  that 
which  is  either  i-eally  or  apparently  an  act  of  violence,  and  from  that  the 
inference  ma\-  reasonably  be  drawn  that  there  was  deadly  danger  hang- 
ing over  Acers,  in  this  case,  at  that  time." 

These  are  all  the  matters  complained  of.  We  see  no  error  in  the 
rulings  of  the  court,  and,  therefore,  the  judgment  is  Affirmed. 


SECT.    III.]  STATE    V.  EVANS.  555 


U 


STATE   V.  EVANS. 

Supreme  Court  of  Missouri. 

[Reported  124  3fo.  397.] 

Sherwood,  J.^  It  was  developed  by  the  evidence  that  Peter  Fine,  the 
deceased,  rented  a  farm  owned  by  defendant's  wife  ;  both  defendant 
and  deceased  and  their  families  living  on  the  farm  and  occupying 
portions  of  the  same  dwelling  house.  The  term  of  F'ine  had  about 
expired,  and  he  had  been  informed  by  defendant  that  he  wanted  pos- 
session of  the  farm  on  the  expiration  of  the  ^-ear  for  which  it  was  rented 
to  him.  This  announcement  displeased  Fine  and  gave  rise  to  alterca- 
tions between  the  parties,  and  threats  on  the  part  of  Fine  towards 
defendant,  so  much  so,  that  several  days  before  the  homicide  occurred, 
defendant  felt  it  to  be  necessary-  to  take  steps  and  secure  the  arrest  of 
Fine  in  order  to  have  him  bound  over  to  keep  the  peace.  His  arrest 
greatly  enraged  Fine,  and  he  made  threats  of  taking  defendant's  life 
unless  he  got  off  the  place,  etc.  ;  these  threats,  some  of  them,  extend- 
ing even  down  to  the  morning  of  the  day  on  which  Fine  was  shot,  the 
twenty-fifth  of  October.  On  the  morning  of  that  da}',  having  been 
freshly  threatened,  defendant  for  his  own  protection  deemed  it  neces- 
sary to  procure  a  pistol,  which  he  did  b}'  riding  to  Boonville  for  that 
purpose,  and  having  loaded  the  weapon,  returned  home  with  it  in  his 
pocket,  reaching  there  about  noon.  After  putting  his  horse  up  in  tL»^ 
stable,  he  went  to  his  house,  and  after  some  talk  with  his  wife  about 
domestic  affairs,  went  down  for  some  corn  into  the  cornfield  where  the 
tragedy  which  forms  the  subject  of  the  present  prosecution,  occurred. 

Speaking  of  the  instructions  generally,  and  taking  them  as  a  whole, 
they  are  such  as  have  frequentl}"  received  the  approval  of  this  court. 
Express  objection  has,  however,  been  taken  to  the  eighth  instruction 
couched  in  this  language  : 

"  If  you  find  from  the  evidence  that  the  defendant  armed  himself 
with  a  deadly  weapon  and  went  to  where  the  deceased  was,  expect- 
ing the  deceased  to  assault  him,  and  witli  the  intent  of  inflicting 
death  or  great  personal  injury  upon  the  deceased,  tlien  he  can  not  be 
justified  upon  the  ground  of  self-defence,  even  though  you  should  find 
that  the  deceased  was  about  to  kill  him  or  inflict  upon  him  some  great 
personal  injury.  But  the  fact  that  he  went  to  the  field  where  the  de- 
ceased was  would  not  deprive  him  of  the  right  of  self-defence  if  he  went 
with  some  other  purpose  and  not  with  the  expectation  that  a  difficulty 
would  arise,  and  with  the  intent  of  inflicting  death  or  a  great  personal 
injury  upon  the  deceased." 

The  fact  that  defendant  expected  an  attack  did  not  abate  by  one  jot 

'  Only  so  much  of  the  opinion  as  discusses  the  question  of  self-defence  is  given.  — ■ 
Ed. 


556  CKEIGHTON    V.    COMMONWEALTH.  [CHAP.  V. 

or  tittle  his  right  to  arm  himself  in  his  own  proper  defence,  nor  to  go 
where  he  would,  after  thus  arming  himself,  so  long  as  he  did  no  overt 
act  or  made  no  hostile  demonstrations  toward  Fine.  Defendant  was 
where  he  had  a  right  to  be,  the  land  belonged  to  his  wife;  he  had  a 
right  to  see  that  proper  division  was  made  of  the  crop,  and  to  oversee 
such  division.     State  r.  P'ors3the,  89  Mo.  667. 

If  the  mere  expectation  of  an  assault  from  an  adversarj'is  to  deprive 
the  expectant  of  the  right  of  self-defence,  merely  because  he  goes  armed 
in  the  vicinity  of  his  enemy,  or  goes  out  prepared  upon  the  highwav 
where  he  is  likel}'  at  an}-  moment  to  meet  him,  then  l^e  has  ai'med  him- 
self in  vain,  and  self-defence  ceases  wherever  expectation  begins. 

We  do  not  so  understand  the  law.  The  very  object  of  arming  one- 
self is  not  to  destroy  expectation  of  a  threatened  attack,  but  to  be 
prepared  for  it  should  it  unfOrtunatel}'  come.  Our  legislature  has 
sanctioned  this  view  b}'  making  the  carrying  of  concealed  weapons 
non-punishable,  when  the  accused  has  been  threatend  with  great  bodily 
harm,  etc.  R.  S.  1889,  sec.  3503.  The  instruction  must,  therefore,  be 
ruled  erroneous. 


'■^  CREIGHTON  v.  COMMONWEALTH. 

Court  of  Appeals  of  Kentucky.      1886. 

[Reported  84  Kentucky,  103.] 

Pryor,  J.^  The  case  under  consideration  has  been  heretofore  in  this 
court,  and  the  judgment  of  conviction  reversed. 

The  appellant  was  indicted,  tried,  and  convicted  of  manslaughter  for 
the  killing  of  Ambrose  Wilson. 

It  is  claimed  by  the  accused  that  Wilson  attempted  to  arrest  him  for 
a  misdemeanor  when  he  was  not  a  peace  officer,  and  had  no  authority 
to  take  charge  of  his  person  or  make  the  arrest,  and  that  in  the  un- 
lawful conduct  of  Wilson  originated  the  altercation  resulting  in  his 
death.  This  court  held  in  the  former  opinion  (83  Ky.  142)  that  the 
deceased  was  not  a  peace  officer,  and  in  attempting  to  make  the  arrest 
was  guilty  of  a  trespass,  and  that  this  fact  should  not  have  been  ex- 
cluded from  the  consideration  of  tlie  jury. 

In  resisting  the  arrest  —  and  this  the  accused  had  the  right  to  do  — 
he  could  not  take  the  life  of  Wilson  unless  his  own  life  was  in  danger, 
or  to  save  his  person  from  great  bodih*  injury.  If  either  fact  existed, 
or  if  he  had  reasonable  grounds  to  believe,  and  did  believe,  that  he  was 
in  imminent  peril  of  losing  his  life,  then,  for  his  own  protection,  he  had 
the  right  to  take  the  life  of  the  deceased. 

The  right  of  protection  against  all  forcible  attacks  upon  the  person 

■'  1  Part  of  the  opinion  ouly  is  given. 


SECT.    III.]  CREIGHTON    V.    COMMONWf^ALTH.  557 

belongs  to  every  man ;  but  the  extent  to  which  this  may  go,  or  the 
manner  of  defence,  is  an  important  inquiry.  Human  life  cannot  be 
taken  unless  to  protect  the  life  of  another,  or  i)revent  the  infliction  of 
some  great  bodily  injur}',  and  tlie  degree  of  force  to  be  used  must  be 
determined  by  the  character  of  the  attack  made.  ''Although  a  man 
will  not  be  justified,  tlien,  if  lie  kill  in  defence  against  an  illegal  arrest 
of  an  ordinary  character,  yet  the  law  sets  such  a  high  value  upon  the 
libert}'  of  the  citizen  that  an  attempt  to  ai'rest  him  unlawfully  is 
esteemed  a  great  provocation,  such  as  will  reduce  a  killing  in  the 
resistance  of  such  an  arrest  to  manslaughter."  Commonwealth  v. 
Carey,  12  Cush.  24G  ;  Roberts  r.  State,  14  Mo.  138  ;  1  Hale's  Pleas 
of  the  Crown,  457 ;  note  to  Horrigan  &  Thompson's  Cases  on  Self- 
Defence,  p.  816.  • 

Bishop  says :  "  The  attempt  to  take  away  one's  liberty  is  not  such 
an  aggression  as  may  be  resisted  to  the  death.  Nothing  short  of  an 
endeavor  to  destroy  life  will  justify  the  taking  of  life,  is  a  doctrine  that 
prevails  in  such  a  case."     1  Bishop's  Crim.  Law,  §  868. 

At  first  impression  it  would  seem  that  in  the  attempt  to  deprive  one 
wrongfully  of  his  personal  liberty,  the  parly  assaulted  should  be  per- 
mitted to  use  all  the  force  necessary  to  release  himself  from  the  unlawful 
arrest,  or  to  prevent  the  imprisonment ;  /"or  life  being  valueless  xoitliout 
liberty^  the  modes  of  defence  for  the  preservation  of  human  life  should 
be  allowed  for  the  maintenance  of  human  liberty. 

Mr.  Bishop  says:  "The  reason  why  a  man  ma}-  not  oppose  an 
attempt  on  his  liberty  b}'  the  same  extreme  measures  permissible  in  an 
attempt  on  iiis  life,  ma}'  be  because  liberty  can  be  secured  by  a  resort 
to  the  laws."     1  Bishop's  Crim.  Law,  §  868. 

There  are  cases  in  which  the  party  subjected  to  the  unlawful  arrest 
ma}'  resist,  even  to  taking  the  life  of  the  wrong-doer.  Where  the 
attempt,  says  Mr.  Bishop,  is  to  convey  one  by  force  beyond  the  reach 
of  law,  or  to  carry  him  out  of  the  country,  in  such  extreme  cases  the 
party  would  be  justified  in  resisting  to  the  death  of  his  adversary. 

In  the  present  case  the  court  below  told  the  jury  "  that  the  arrest  of 
the  accused  was  unlawful,  and  tliat  the  latter  had  the  right  to  resist 
the  arrest  by  the  use  of  such  force,  but  only  such  force,  as  was  neces- 
sary, or  seemed  to  him  (the  defendant),  in  the  exercise  of  a  reasonable 
judgment,  to  be  necessary  to  repel  the  force  used  by  AVilson  in  attempt- 
ing to  arrest  him  ;  and  if  the  jury  believe  from  the  evidence  that  the 
defendant,  at  the  time  he  shot  and  killed  Wilson,  believed,  and  had 
reasonable  grounds  to  believe,  that  he  was  then  and  there  in  immediate 
danger  of  losing  his  own  life,  or  of  great  bodily  harm  at  the  hands  of 
said  Wilson,  and  that  to  shoot  said  Wilson  was  necessary,  or  seemed 
to  the  defendant,  in  the  exercise  of  a  reasonable  judgment,  to  be  neces- 
sary, to  avert  the  danger,  real  or  to  him  apparent,  as  before  stated,  the 
jury  should  find  him  not  guilty," 

Learned  counsel  for  the  defence,  in  response  to  the  argument  by  the 
attorney  for  the  State,  insisted  that  his  client  had  the  right  to  use  such 


558  STATE    V.   SHEEMAN.  [CHAP.  V. 

force,  and  no  more,  as  was  necessary  to  resist  the  arrest  and  prevent 
an  unlawful  imprisonment,  and  that  the  danger  to  life  or  the  fear  o;f 
great  bodil}'  harm  should  iiave  been  eliminated  from  the  instruction. 
However  persuasive  his  argument,  and  conceding  that  any  other  arrest 
and  imprisonment  than  that  which  is  in  accordance  with  law  and  neces- 
sary' for  tlie  ends  of  public  justice  is  inconsistent  with  civil  liberty, 
still  the  enjoyment  of  the  absolute  right  of  personal  liljert}-  cannot  be 
asserted  by  taking  the  lives  of  those  restraining  its  exercise,  unless  the 
attempt  to  prevent  its  enjoyment  endangers  the  life  of  the  citizen,  or 
subjects  him  to  great  bodily  harm. 

The  law  has  merely  said  to  the  citizen  that,  although  3-our  liberty 
has  been  restrained,  you  cannot  deprive  the  aggressor  of  his  life  in 
order  to  regain  it,  unless  you  are  in  danger  of  losing  3'our  own  life. 

Such  was  the  instruction  given  by  the  court  below,  and  the  accused 
having  been  found  guilty  of  manslaughter  only,  we  perceive  no  reason 
for  disturbing  the  judgment,  and  the  same  is  now  affirmed. 


STATE   V.   SHERMAN. 
Supreme  Court  of  Rhode  Island.     1889. 

[Reported  16  Rhode  Island,  631.] 

DuRFEE,  C.  J.^  On  trial  in  the  Court  of  Common  Pleas  the  com- 
plainant testified  that,  seeing  the  defendants  tearing  down  the  cause- 
wa}',  he  ran  to  where  said  .John  P.  Sherman  was  at  work,  and  put  his 
foot  on  a  stone  which  said  John  P.  was  prying  up  with  a  crowbar; 
that  said  .John  P.  raised  the  crowbar  us  if  to  strike  him,  whereupon  he 
seized  it  in  self-defence,  and  some  one,  he  knew  not  who,  knocked 
him  down,  and  that  said  .John  P,  twice  tlirew  him  from  the  causeway 
into  the  water.  His  testimon\'  was  corroborated  by  other  witnesses. 
On  the  other  hand,  said  -John  P.  testified  that  the  complainant  rushed 
down  and  seized  him,  that  he  never  either  struck  or  struck  at  him,  but 
only  pushed  him  away,  using  no  more  force  than  was  necessary  for 
self-protection,  as  the  complainant  repeatedly  attacked  him.  Other 
witnesses  corroborated  him.  He  also  testified  that  the  open  water  at 
the  end  of  the  causeway  was  too  shallow  for  him  to  pass  without  get- 
ting out  of  his  boat  and  dragging  it.  After  the  case  had  been  argued 
to  the  jm-y,  he  asked  the  court  to  instruct  the  jur}'  as  follows,  to  wit : 
"  That  a  man  in  a  public  place,  if  attacked,  ma}-  resist  with  his  natural 
weapons,  using  no  more  force  than  is  necessar}',  without  retreating." 
The  court  refused,  but  did  instruct  them  that  in  such  a  case  a  man  must 
retreat,  if  he  can  safely,  and  that  the  defendant  did  not  testify  that 
there  was  anything  to  prevent  his  retreating.     The  defendant  excepted 

1  Part  of  the  opinion  only  is  given. 


SECT.  III.]  STATE    V.    SHERMAN.  559 

to  both  the  refusal  and  the  instruction.  The  bill  of  exceptions  sets 
forth  that  the  complainant's  counsel  stated,  in  his  argument  to  the 
jury,  that  he  did  not  claim  for  the  complainant  the  right  to  use  any 
force  to  protect  the  causewa}',  or  an}-  force  against  the  defendant,  ex- 
cept such  as  he  might  lawfulh-  use  in  an}'  pubUc  place. 

We  think  the  court  below  erred.  Generally  a  person  wrongfully 
assailed  cannot  justify  the  killing  of  liis  assailant  in  mere  self-defence, 
if  he  can  safely  avoid  it  by  retreating.  Retreat  is  not  always  obliga- 
tory, even  to  avoid  killing ;  for  if  attack  be  made  with  deadlv  weapons, 
or  with  murderous  or  felonious  intent,  the  assailed  may  stand  his 
ground,  and  if  need  be  kill  his  assailant.  But  there  is  no  question  of 
kiUing  here,  and  we  know  of  no  case  which  holds  that  retreat  is  obli- 
gator}-  simpl}'  to  avoid  a  conflict.  Where  there  is  no  homicide  the 
rule  generally  laid  down  is,  that  the  assaulted  person  may  defend  him- 
self, opposing  force  to  force,  using  so  much  force  as  is  necessary  for 
his  protection,  and  can  be  held  to  answer  onlv  for  exceeding  such 
degree.  Mr.  Bishop,  in  his  work  on  Criminal  Law,  §  849,  says : 
'■'•  The  assailed  person  is  not  permitted  to  stand  and  kill  his  adversary, 
if  there  is  a  way  of  escape  open  to  him,  while  yet  he  may  repel  force 
by  force,  and,  within  limits  diflfering  with  the  facts  of  the  case,  give 
back  blow  for  blow."  See,  also,  1  Wharton's  Criminal  Law,  §  *J9  ; 
Stephen's  Digest  Criminal  Law,  art,  200 ;  May's  Criminal  Law,  Stu- 
dents' Series,  §  62.  Mr.  May's  language  is:  "There  seems  to  be  no 
Qecessity  for  retreating  or  endeavoring  to  escape  from  the  assailant 
before  resorting  to  any  means  of  self-defence  short  of  those  which 
threaten  the  assailant's  life."  In  Commonwealth  v.  Drum,  58  Pa. 
1,  21,  22,  where  the  defendant,  who  was  indicted  for  murder,  set  up 
that  he  acted  in  self-defence,  the  court  in  charging  the  jury  used  the 
following  language  :  "The  right  to  stand  in  self-defence  without  flee- 
ing has  been  strongly  asserted  by  the  defence.  It  is  certainly  true 
tliat  ever}'  citizen  may  rightfull}'  traverse  the  street,  or  may  stand  in 
all  proper  places,  and  need  not  flee  from  every  one  who  chooses  to 
assail  him.  Without  this  our  liberties  would  be  worthless.  But  the 
law  does  not  apply  this  right  to  homicide."  There  are  cases,  however, 
which  manifest  a  disposition  to  apply  the  same  rule  generally.  Run- 
yan  v.  The  State,  57  Ind.  80  ;  Erwin  v.  State,  29  Ohio  St.  186. 

In  Gallagher  r.  The  State^  3  Minn.  270,  the  defendant  was  com- 
plained of  for  assault  and  battery,  and  set  up  in  justification  that  he 
acted  in  self-defence,  the  complainant  having  stepped  forward  with 
his  cane  raised,  as  if  about  to  strike.  The  lower  court,  on  trial,  ruled 
as  follows  :  "Where  a  person  is  approached  by  another  with  a  cane 
raised  in  a  hostile  manner,  the  former  is  not  justified  in  striking  un- 
necessarily, but  is  bound  to  retreat  reasonably  before  striking."  On 
error  the  Supreme  Court  held  the  ruling  to  be  erroneous.  "  Such  is 
not  the  law,"  say  the  court;  "  but  the  party  thus  assaulted  may  strike, 
or  use  a  sufficient  degree  of  force  to  prevent  the  intended  blow,  with- 
out retreating  at  all."  The  case  is  exactly  in  point.  The  excei)tion 
is  therefore  sustained,  and  the  cause  will  be  remitted  for  a  new  trial. 


500  UHLEIN  V.   CROMACK.  [CHAP.  V. 


UHLEIN  V.   CROMACK. 
Supreme  Judicial  Court  of  Massachusetts,  1872. 

[Reported  109  Mass.  273.] 

Tort  for  killing  the  plaintiff's  dog.' 

The  defendant  contended  that  he  had  a  right  to  kill  the  dog,  on 
the  ground  that  it  was  a  public  nuisance,  because  it  was  a  dangerous 
animal  and  accustomed  to  bite  those  who  came  near  it;  and  that  the 
plaintiff  did  not  properly  confine  it;  and  e\ndence  was  offered  on  this 
point,  and  that  the  dog  had  pre^^ously  bitten  two  persons,  one  of  whom, 
while  going  upon  the  plaintift''s  premises,  over  a  fence  in  the  rear  of  the 
kennel,  to  do  some  work  for  the  plaintiff's  family,  came  past  the  dog, 
and  the  other  of  whom  was  attacked  some  months  before,  on  the  public 
highway.  The  defendant  also  introduced  evidence  tending  to  show 
that  the  locality  in  which  the  plaintiff'  lived  was  quiet,  and  compara- 
tively free  from  persons  likely  to  trespass  on  the  plaintiff's  premises. 
The  judge  rules  that  these  facts  alone,  if  true,  would  not  justify  the 
defendant  in  killing  the  dog  as  he  did,  the  statute  specifying  the  method 
by  which  a  dangerous  dog  might  be  killed,  and  the  defendant  not 
claiming  to  have  acted  under  any  authority  conferred  on  him  by  the 
statute;  and  so  instructed  the  jury,  to  wliich  the  defendant  excepted. 
The  jury,  however,  when  they  returned  their  verdict,  at  the  request  of 
the  judge  returned  special  findings,  that  the  dog  was  a  dangerous  ani- 
mal and  accustomed  to  bite  those  who  came  near  it,  but  that  it  was 
chained  and  confined  so  that  all  persons  properly  on  the  plaintiff's 
premises  were  in  no  danger  from  it. 

Chapman,  C.  J.  By  the  common  law,  a  dog  is  property,  for  an 
injury  to  which  an  action  will  lie.  Wright  v.  Ramscot,  1  Saund.  84;, 
2  Bl.  Com.,  393.  In  this  commonwealth  the  keeping  of  dogs  is  regu- 
lated by  the  Gen.  Sts.  c.  88,  §§  52  d  srq.,  and  the  St.  of  1867,  c.  130. 
The  plaintiff  kept  his  dog  restrained  in  conformity  wnth  the  statutes. 
Although  the  dog  was  a  dangerous  animal,  and  accustomed  to  bite  those 
who  came  near  it,  yet,  as  it  was  confined,  so  that  all  persons  properly 
on  the  plaintiff's  premises  were  in  no  danger  from  it,  and  was  otherwise 
kept  according  to  law,  and  the  defendant  had  not  been  attacked  by  it, 
the  jury  were  properly  instructed  that  the  act  of  the  defendant  was  not 
justifiable.  They  were  also  properly  instructed  that  the  plaintiff  had 
a  right  thus  to  keep  it  for  the  protection  of  his  family .^ 

Exceptions  overruled. 

^  Part  of  the  statement  of  facts  is  omitted.  —  Ed. 
2  See  McChesney  v.  Wilson,  132  Mich.  252.  —  Ed. 


SECT.  III.]  BARFOOT    V.    KEYNOLDS.  561 


BARFOOT  V.   REYNOLDS. 
King's  Bench. 

[Reported  2  Str.  953.] 

Trespass,  assault,  and  battery  against  Reynolds  and  Westwood. 
Reynolds  pleaded  son  assault:  and  Westwood  pleaded  that  he  was 
servant  to  Reynolds,  the  other  defendant,  and  that  the  plaintiff  ha\ang 
assaulted  his  master  in  his  presence,  he  in  defense  of  his  master  struck 
the  plaintiff.  And  on  demurrer  the  plea  was  held  ill,  for  the  assault 
on  the  master  might  be  over,  and  the  servant  cannot  strike  by  way  of 
revenge,  but  in  order  to  prevent  an  injury;  and  the  right  way  of 
pleading  is,  that  the  plaintiff  would  have  beat  the  master,  if  the  ser- 
vant had* not  interposed,  prout  ei  bene  licuit.  The  plaintiff  had  judg- 
ment. 


1  East  P.  C.  289,  290.  In  all  cases  where  a  felonious  attack  is 
made,  a  servant  or  any  other  person  present  may  lawfully  interpose  to 
prevent  the  mischief  intended  ;  and  if  death  ensue,  the  party  so  inter- 
posing will  he  justified.  TIuis,  in  the  instances  of  arson  or  burglary, 
a  lodger  may  lawfully  kill  the  assailant  in  the  same  manner  as  the 
owner  himself  might  do.  .  .  .  But  the  case  of  third  persons  interfer- 
ing in  mutual  combats  or  sudden  affrays,  except  as  mediators  to  pre- 
serve the  peace,  requires  greater  caution.  ...  If  A.,  a  stranger,  take 
part  on  a  sudden  with  either  B.  or  C.  who  are  engaged  together  in  an 
affray,  wherein  both  are  in  the  eye  of  the  law  blamable,  although 
perhaps  in  different  degrees  ;  and  afterwards  kill  either,  although  in 
the  necessary  defence  of  the  other,  it  cannot  be  less  than  manslaughter  ; 
for  he  who  thus  officiously  interferes  without  any  previous  knowledge 
of  the  merits  of  the  dispute,  not  to  preserve  the  peace  but  to  partake 
in  the  broil,  is  himself  highly  culpable,  —  having  less  provocation  to 
heat  his  blood  than  probably  the  parties  themselves  had  who  originally 
engaged  in  the  disi)ute.^ 


1  For  the  analogous  case  of  a  stranger  interfering  to  rescue  one  who  having  been 
illegally  arrested  had  nevertheless  submitted,  see  Rex  v.  Tooley,  2  Ld.  Ray.  1296; 
Hugget's  Case,  Kel.  59;  Adey's  Case,  1  Leach,  245;  Steph.  Dig.  Cr.  L.  372.  —  Ed. 


562  REGINA   V.    ROSE.  [CHAP.  V. 


REGINA   y.   ROSE. 

Oxford  Assizes.     1884. 

[Reported  15  Cox  C.  C.  540] 

The  prisoner  was  indicted  for  the  wilful  murder  of  his  father,  John 
William  Rose,  at  Witno}',  on  the  27th  da}'  of  September. 

The  material  facts  proved  were  as  follows  :  The  prisoner,  a  weakly 
yonng  man  of  about  twenty-two  3'ears  of  age,  was  at  the  time  of  the 
alleged  murder  living  with  his  father,  mother,  and  sisters  at  Witney. 
The  father,  who  was  a  very  powerful  man,  had  recently  taken  to  exces- 
sive drinking,  and  while  in  a  state  of  intoxication  was  possessed  with 
the  idea  that  his  wife  was  unfaithful  to  him.  He  had  on  more  than  one 
occasion  threatened  to  take  away  her  life,  and  so  firmly  impressed  was 
she  with  the  idea  that  these  were  no  idle  threats  that  the-  prisoner's 
mother  had  frequenth'  concealed  everything  in  the  house  which  could 
be  used  as  a  weapon. 

On  the  night  in  question  the  family  retired  to  their  bedrooms,  which 
were  situated  adjoining  to  one  another,  about  nine  o'clock.  The 
deceased  man  appears  to  have  immediately  commenced  abusing  and 
illtreating  his  wife,  accusing  her  of  unfaithfulness  to  him  and  threaten- 
ing to  murder  her.  -On  several  occasions  she  retired  for  safet}'  to  her 
daughter's  room  ;  on  the  last  occasion  her  husband  pursued  her,  and 
seizing  her  dragged  her  towards  tlie  top  of  the  stairs,  threatening  to 
push  her  down.  He  then  said  he  would  cut  her  throat,  left  her  saying 
he  was  going  to  fetch  the  knife  which  all  the  family  seem  to  have 
known  was  in  his  room,  and  then  rushing  back  seized  his  wife,  and 
forced  her  up  against  the  balusters,  holding  her  in  such  a  position  that 
the  daughters  seem  to  have  thought  he  was  actually  cutting  her  throat. 
The  daughters  and  mother  shouted  ^  Murder  !  "  and  the  prisoner,  run- 
ning out  of  his  room,  found  his  father  and  mother  in  the  position 
described.  No  evidence  was  given  that  the  deceased  man  had  any 
knife  in  his  hand,  and  all  the  witnesses  said  that  they  did  not  see  then 
or  afterwards  find  his  knife. 

The  prisoner  fired  one  shot  (according  to  his  own  account)  to  frighten 
his  father,  but  no  trace  of  any  bullet  could  be  found,  and  immediately 
after  he  fired  another  shot  which,  striking  his  father  in  the  eye,  lodged 
in  the  brain  and  caused  his  death  in  about  twelve  hours.  On  his  arrest 
the  prisoner  said,  "  Father  was  murdering  Mother.  I  shot  on  one  side 
to  frighten  him  ;  he  would  not  leave  her,  so  I  shot  him." 

In  cross-examination  the  deceased  man's  employer  said  that  the  pris- 
oner's father  was  the  strongest  man  he  had  ever  seen,  and  the  prisoner 
would  not  have  had  the  slightest  chance  in  a  hand-to-hand  encounter 
with   him. 


SECT.  III.]  FLINT    V.    BRUCE.  563 

The  defence  set  up  was  that  the  case  was  one  of  excusable  homicide. 

His  Lordship  [Lopp:s,  J.]  in  the  course  of  his  summing  up  said  : 
Homicide  is  excusable  if  a  person  takes  away  the  life  of  another  in 
defending  himself,  if  the  fatal  blow  which  takes  away  life  is  necessar}' 
for  his  preservation.  The  law  sa3s  not  only  in  self-defence  such  as  I 
have  described  may  homicide  be  excusable,  but  also  it  may  be  excusable 
if  the  fatal  blow  inflicted  was  necessary  for  the  preservation  of  life.  In 
the  case  of  parent  and  child,  if  the  parent  has  reason  to  believe  that  the 
life  of  a  child  is  in  imminent  danger  b}'  reason  of  an  assault  by  anothei- 
person  and  that  the  only  possible,  fair,  and  reasonable  means  of  saving 
the  child's  life  is  b}^  doing  something  which  M'ill  cause  the  death  of  that 
person,  the  law  excuses  that  act.  It  is  the  same  of  a  child  with  regard 
to  a  parent ;  it  is  the  same  in  the  case  of  husband  and  wife.  Therefore 
I  propose  to  la}-  the  law  before  you  in  this  form  :  If  you  think,  having 
regard  to  the  evidence  and  drawing  fair  and  proper  inferences  from  it, 
that  the  prisoner  at  the  bar  acted  without  vindictive  feeling  towards  his 
father  when  he  fired  the  shot,  if  you  think  tliat  at  the  time  he  fired  that 
shot  he  honestly  believed  and  had  reasonable  grounds  for  the  belief  that 
his  mother's  life  was  in  imminent  peril,  and  that  the  fatal  shot  which 
he  fired  was  absolutely  necessary  for  the  preservation  of  her  life,  then 
he  ought  to  be  excused,  and  the  law  will  excuse  him  from  the  conse- 
quences of  the  homicide.  If,  however,  on  the  other  hand,  you  cannot 
come  to  that  conclusion,  if  you  think,  and  think  without  any  reasonable 
doubt,  that  it  is  not  a  fair  inference  to  be  drawn  from  the  evidence,  but 
are  clearly  of  opinion  that  he  acted  vindictivel}'  and  had  not  such  a 
belief  as  I  have  described  to  3'ou,  or  had  not  reasonable  grounds  for 
such  a  belief,  then  you  must  find  him  guilty  of  murder. 

Verdict.  Not  guilty} 


FLINT  V.   BRUCE. 
Supreme  Judicial  Court  of  Maine,  1878. 

[Reported  68  Me.  183.] 

Appleton,  C.  J.^  This  is  an  action  of  trespass  for  an  assault  and 
battery  upon  the  plaintiff  by  the  defendant. 

The  evidence  shows  an  affray  between  the  defendant  and  A.  L. 
Soule,  the  father  of  the  plaintiff.  The  plaintiff  interfered  for  the  pro- 
tection of  her  father,  and  to  prevent  the  further  continuance  of  the 
affray.    A  child  has  an  unquestioned  right  to  intervene  for  the  protec- 

1  See  Campbell  v.  Com.,  88  Ky.  402.     As  to  right  of  a  U.  S.  marshal  to  defend  a 
judge,  see  In  re  Neagle,  L35  U.  S.  1.  —  Ed. 
"  Part  of  the  opinion  only  is  printed.  —  Ed. 


564  TOMPKINS   V.    KNUT.  [OHAP.  V. 

tion  of  a  father  upon  whom  an  assault  is  being  committed.  The 
defendant  committed  the  assault  upon  the  plaintiff  while  acting  in  de- 
fense of  her  father.  For  this  assault  and  the  damages  resulting  there- 
from the  defendant  is  responsible  to  this  plaintiff.  .  .  . 


TOMPKINS  V.  KNUT. 
Circuit  Court  of  the  United  States,  1899. 

[Reported  94  Fed.  956.] 

Evans,  J.  In  the  case  of  Oscanyan  v.  Arms  Co.,  103  U.  S.  261,  the 
trial  court,  after  hearing  the  opening  statement  by  plaintiff's  counsel 
to  the  jury  as  to  what  facts  were  expected  to  be  proved  to  support  the 
plaintiff's  case,  and  after  verifying  the  accuracy  of  the  statement,  sus- 
tained a  motion  on  behalf  of  defendant  on  that  presentation  of  the 
case  alone  to  instruct  the  jury  to  find  a  verdict  against  the  plaintiff 
upon  the  ground  that,  if  those  statements  were  true,  the  contract  sued 
upon  was  against  public  policy,  and  void.  Upon  a  writ  of  error  to  the 
Supreme  Court  the  proceeding  was  approved,  and  the  judgment  was 
affirmed.  The  plaintiff  in  this  action  for  assault  and  battery  and  tres- 
pass has  testified  under  oath,  and  stated  the  facts  upon  which  he  relies 
in  support  of  his  action,  and  the  court  is  called  upon  to  determine 
whether,  assuming  all  the  plaintiff"  says  to  be  true,  he  is  entitled  to 
a  verdict  against  the  only  defendant  now  remaining  in  the  case,  since  the 
death  of  his  wife,  the  former  co-defendant,  has  abated  the  action  as  to 
her.  As  the  plaintiff'  was  a  participant  in  the  entire  transaction  out  of 
which  his  action  arose,  and  completely  states  his  case,  it  is  admissible 
and  proper,  I  think,  to  bring  this  question  up  now,  because  it  would 
not  be  competent  for  him  by  other  witnesses  to  contradict  what  he 
says;  and  while,  on  this  motion,  his  statements  must  be  accepted  as 
true  in  his  behalf,  they  may  also,  for  the  reason  indicated,  be  taken  as 
true  against  him.  It  appears  from  his  testimony  that,  ha\ing  been 
employed  by  the  defendant  and  his  wife  and  her  brother,  the  owners 
of  the  farms  described  in  the  pleadings,  up  to  January  1,  1898,  as  a 
manager  and  overseer,  his  contract  was  soon  afterwards  renewed  for  the 
year  1898;  that  part  of  the  agreement  was  that  the  plaintiff',  besides 
his  monthly  wages,  was  to  have  the  use  of  the  house  on  the  premises  for 
occupation  by  himself  and  family,  and  also  pro\asions  for  the  support 
of  them  all;  that  on  the  24th  of  January,  1898  (the  defendant  and  wife 
haxing  come  to  the  farm  on  invitation  of  the  plaintiff'  in  the  preceding 
December,  and  having  remained  there,  and   all  parties  having  been 


SECT.  III.]  TOMPKINS   V.    KNUT.  565 

entirely  friendly,  up  to  January  24th),  there  was  some  dispute  as  to 
whether  plaintiff  was  any  longer  wanted,  or  would  be  permitted  to 
remain,  as  the  employee  of  defendant  and  his  wife ;  that  on  the  succeed- 
ing day  (January  25th),  while  the  defendant  was  outside  the  house  to 
the  plaintiff's  knowledge,  who  was  also  outside,  the  plaintiff  was  hastily 
informed  that  Mrs.  Knut,  or  someone  in  the  inside  of  the  house,  was 
remoA'ing  the  furniture,  and  putting  his  family  out,  whereupon  the 
plaintiff  hurriedly  ran  into  the  house,  seized  a  Winchester  repeating 
rifle,  and,  upon  going  into  the  room  where  the  others  were,  among  other 
things,  said,  "  If  they  touch  any  more  of  my  furniture  I  will  kill  every 
son  of  bitch  who  does  it";  that  the  rifle  was  then  cocked,  and  leveled, 
in  the  hands  of  the  plaintiff,  who  also  had  upon  him  a  revolver,  and 
probably  a  dirk;  that  Mrs.  Knut,  while  appealing  to  him  to  desist, 
took  hold  of  the  rifle,  and  while  she  had  hold  of  it  it  was  discharged; 
that  the  defendant  also  went  into  the  room  soon  after  plaintiff  did,  and 
there  found  his  wife  struggling  with  plaintiff,  who  was  armed  as  indi- 
cated, and  endeavoring  in  some  way  to  control  the  direction  of  the 
pointing  of  the  gun;  that  under  these  circumstances  the  defendant, 
with  some  persons  present  (none  of  whom  except  the  plaintiff  appear 
in  any  way  to  have  been  armed),  overpowered  plaintiff,  bound  his 
hands  behind  him,  took  from  him  his  gun  and  pistol,  removed  him  to 
the  stable  lot,  and  soon  afterwards  delivered  him  to  a  peace  officer  (a 
deputy  sheriff)  who  happened  to  be  at  the  house  on  other  business,  and 
that  the  plaintiff  was  then  unbound  and  removed  by  the  officer,  accom- 
panied by  the  defendant  and  one  other  person,  to  Owensboro,  the 
county  seat.  It  is  claimed  that  a  kodak  picture  was  taken  of  some 
part  of  the  scene,  but  it  does  not  appear  that  defendant  was  concerned 
with  that  phase  of  the  case,  but  that,  if  it  was  done  by  anybody,  it  was 
by  his  wife,  now  dead.  It  seems  to  the  court  that  all  parties  were  law- 
fully on  the  premises  at  the  time,  and  that  the  whole  case  must  turn, 
not  upon  the  provisions  of  the  contract,  nor  anybody's  rights  there- 
under, but  upon  the  facts  immediately  connected  with  the  affray  on 
January  25th.  If  this  be  correct,  then  the  court,  upon  the  plaintiff's 
own  showing,  is  clearly  of  opinion  that  the  defendant  had  reasonable 
grounds  for  believing,  when  he  appeared  upon  the  scene,  that  his  wife 
was  apparently  in  great  jeopardy  and  danger  of  her  life  in  her  struggle 
with  a  man  so  thoroughly  armed  as  was  the  plaintiff;  that  if  the  de- 
fendant had  then  been  armed,  and  had  taken  the  plaintiff's  life,  the 
law  would  have  excused  him;  that  if  he  might,  in  the  then  apparently 
necessary  defense  of  his  wife,  have  taken  plaintiff's  life,  he  was  cer- 
tainly excusable  in  doing  for  her  protection,  and  probal)ly  his  own, 
the  lesser  things  of  binding  and  disarming  the  plaintiff,  so  as  to  prevent 
further  mischief  until  he  could  deliver  plaintiff  to  a  peace  officer,  pre- 
cisely as  he  might  be  justified  in  binding  a  madman  or  a  dangerous 
beast,  who  had  as  ample  power  to  do  mischief  as  this  heavily-armed 
man  had  upon  this  occasion ;  and  that  it  does  not  appear  that  defendant 


566  WOOD    V.    STATE.  [CHAI'.  V. 

used  more  force  than  was  apparently  necessary  to  prevent  great  bodily 
harm  to  his  wife,  and  probably  others.  Whether  plaintiff  had  any 
right  to  enforce  his  claims  to  the  possession  of  defendant's  premises  by 
force  of  arms  may  well  admit  of  doubt,  as  he  was  only  defendant's 
employee,  and  not  his  tenant  in  the  ordinary  sense;  and,  if  plaintiff 
liad  not  such  right,  then  he  was  a  gross  \'iolator  of  the  law  in  seeking  to 
remedy  his  supposed  wrongs  in  so  \'iolent  a  manner,  and  should  take  the 
consequences  without  complaint.  Indeed,  all  things  considered,  the 
court  is  inclined  to  think  that  the  plaintiff  got  off  quite  as  well  as  he 
could  have  reasonably  expected.  Upon  the  facts  stated  under  oath  by 
the  plaintiff,  if  the  jury  were  to  find  a  verdict  in  his  favor  the  court 
would  not  permit  it  to  stand.  F'or  the  reasons  thus  briefly  stated,  the 
court  will  sustain  the  motion,  and  instruct  the  jury  to  find  for  the 
defendant. 


WOOD  V.   STATE. 
Supreme  Court  of  Alabama,  1900. 

[Reported  128  Ala.  27.] 

Appeal  from  the  Criminal  Court  of  Jefferson. 

Tried  before  the  Hon.  Samuel  E.  Greene. 

Felix  Wood,  the  appellant,  and  Marion  Wood,  together  A\ath  four 
others,  were  jointly  indicted  for  an  assault  with  intent  to  murder  one 
John  A.  Brooks.  The  appellant  was  convicted  of  the  offense  charged, 
and  sentenced  to  the  penitentiary  for  a  term  of  ten  years. 

On  the  trial  of  the  cause,  it  was  shown  that  John  A.  Brooks,  the 
person  alleged  to  have  been  assaulted,  was  the  conductor  of  a  street 
car,  which  ran  from  Birmingham  to  East  Lake,  and  that  on  the  day 
before  the  offense  charged  was  committed,  John  A.  Brooks  and  Marion 
W'ood,  brother  of  the  defendant  Felix  Wood,  had  a  difficulty;  and, 
on  the  day  of  the  assault  complained  of,  Marion  Wood  boarded  the 
car  upon  which  Brooks  was  conductor  on  Twenty-second  Street  in 
Birmingham,  and  that  Felix  Wood  and  the  other  person  jointly  indicted 
wath  him,  boarded  the  car  on  Twenty-fourth  Street,  and  they  all  went 
to  East  Lake  on  said  car;  that  Felix  Wood,  when  he  boarded  the  car, 
carried  a  Winchester  rifle  with  him,  in  a  canvas  case;  that  upon 
reaching  East  Lake,  the  defendant  and  the  persons  with  him  alighted 
from  the  car;  that  Marion  Wood  went  up  to  Brooks,  and,  after  a  few 
words  between  them.  Brooks  and  Marion  Wood  drew  their  pistols  and 
began  firing  at  each  other.     At  this  time  defendant,  Felix  Wood,  who 


SECT.  III.]  WOOD   V.    STATE.  567 

was  standing  some  twenty-five  or  thirty  feet  away,  and  who  had  taken 
his  rifle  from  its  cover  during  the  conversation  between  Marion  Wood 
and  Brooks,  fired  upon  said  Brooks  with  the  rifle. 

During  the  examination  of  John  A.  Brooks,  as  a  witness  for  the 
State,  he  was  asked  the  following  question :  "  What  did  Marion  Wood 
say  to  you,  when  he  came  to  the  rear  of  the  car  at  East  Lake?"  The 
defendant  objected  to  this  question  upon  the  ground  that  it  called  for 
irrelevant  and  immaterial  evidence.  The  court  overruled  the  objec- 
tion, and  defendant  duly  excepted.  In  answer  to  the  question  the 
witness  stated  that  as  Marion  Wood  came  up  to  him  he  said  to  the  wit- 
ness: "  I  came  to  see  3^ou  about  what  you  did  to  me  yesterday."  Wit- 
ness then  further  testified  that  at  that  time  Marion  Wood  had  his  hand 
in  his  coat  pocket,  and  that  the  witness  stated  to  him :  "  If  you  want  to 
talk  to  me,  take  your  hand  out  of  your  pocket";  and  that  he  saw  what 
appeared  to  be  and  was  a  pistol  in  the  hands  of  Marion  Wood;  that 
said  Wood  spoke  in  an  ordinary  tone  of  voice,  and  that  as  Felix  Wood, 
the  defendant,  was  twenty-five  or  thirty  feet  away,  the  witness  could 
not  say  whether  defendant  heard  what  passed  between  them  or  not. 
The  defendant  then  moved  the  court  to  exclude  statement  made  by 
Marion  Wood,  as  witness,  upon  the  grounds  that  it  was  hearsay  evi- 
dence, and  irrelevant  and  immaterial  eiadence.  The  court  overruled 
the  motion,  and  defendant  duly  excepted. 

Upon  cross-examination  of  witness  (Brooks)  the  defendant  asked  him 
several  questions  seeking  to  disclose  the  particulars  of  the  previous 
difficulty  between  said  Brooks  and  Marion  Wood.  To  each  of  these 
questions  the  State  objected;  the  court  sustained  the  objection,  and 
the  defendants  separately  excepted  to  each  of  such  rulings. 

The  testimony  for  the  defendant  tended  to  show  that  John  A. 
Brooks  fired  upon  Marion  Wood  without  provocation;  that  the  de- 
fendant, who  was  the  brother  of  Marion  Wood,  but  who  knew  nothing 
of  the  particulars  of  the  controversy  between  him  and  said  Brooks,  fired 
his  rifle  when  Brooks  shot  at  his  brother,  but  that  he  did  not  aim  the 
rifle  at  Brooks  and  did  not  shoot  until  Brooks  had  quit  shooting  at  his 
brother  and  shot  at  the  defendant  twice. 

The  defendant  testified  that  the  first  thing  he  saw  after  his  brother, 
Marion  Wood,  went  up  to  Brooks,  Brooks  had  pulled  his  pistol  and 
was  firing  at  his  brother,  who,  at  that  time,  had  not  made  any  demjon- 
stration  towards  Brooka;  and  that  he,  the  defendant,  did  not  hear  any 
of  the  conversation  between  Brooks  and  his  brother. 

Upon  the  introduction  of  all  the  evidence  the  defendant  requested 
the  court  to  give  the  jury  the  following  charges  and  the  defendant 
severally  excepted  to  the  refusal  to  give  each  of  them  as  asked : 

"(1)  If  the  jury  believe  from  the  evidence  that  the  defendant, 
seeing  his  brother  Marion  Wood  in  a  desperate  encounter  with  Brooks, 
shot  at  Brooks  for  the  purpose  of  defending  his  brother,  without 
knowing  the  origin  of  the  difficulty,  the  jury  may  consider  these  facts 


568  WOOD    V.    STATE.  [CHAP.  V. 

in  determining  whether  the  defendant  acted  maliciously,  premedita- 
tedly,  and  deliberately  or  justifiably."  "  (2)  If  the  jury  believe  all  the 
evidence  they  cannot  convict  the  defendant  of  an  assault  with  intent 
to  murder."  "  (3)  The  court  charges  the  jury  that  defendant  was  not 
bound  to  inquire  into  the  origin  of  the  difficulty  between  his  brother 
and  Brooks,  but  had  the  right  to  act  from  appearances."  "  (4)  The 
court  charges  the  jury  that  defendant  would  not  be  guilty  as  charged 
in  the  indictment  if  when  he  fired  his  brother  was  apparently  in  danger 
of  death  or  great  bodily  harm,  at  the  hands  of  Brooks."  "  (5)  If  the 
jury  have  a  reasonable  doubt  from  the  evidence  of  any  one  of  the  fol- 
lowing propositions  being  true,  they  must  acquit  him  of  an  assault  with 
intent  to  murder:  1st.  That  the  defendant  acted  maliciously.  2d. 
That  he  acted  deliberately.    3d.  That  he  acted  with  premeditation." 

McClell.\n,  C.  J.  One  who  intervenes  in  a  pending  difficulty  in 
behalf  of  a  brother  and  takes  the  life  of  the  other  original  combatant 
stands  in  the  shoes  of  the  brother  in  respect  of  fault  in  bringing  on  the 
difficulty,  and  he  cannot  defend  upon  the  ground  that  his  brother  was 
in  imminent  and  deadly  peril  and  could  not  retreat,  unless  the  latter 
could  have  defended  upon  that  ground  had  he  killed  his  assailant. 
Hence  in  such  cases  it  is  a  material  inquiry  whether  defendant's  brother 
was  at  fault  in  bringing  on  the  difficulty  with  the  deceased,  and  the 
same  doctrine  obtains,  of  course,  where  the  charge  is  assault  with  intent 
to  murder;  and  as  bearing  upon  this  inquiry  presented  in  the  case  at 
bar  the  court  properly  admitted  the  testimony  of  Brooks  to  the  effect 
that  Marion  Wood  approached  him  with  his  hand  in  his  pocket  and 
apparently  on  a  pistol  and  said:  "I  came  to  see  you  about  what  you 
did  to  me  yesterday."  It  is  of  no  consequence  that  Felix  Wood,  the 
defendant,  did  not  hear  this  remark  and  was  not,  when  he  intervened, 
aware  of  any  fault  on  the  part  of  Marion  in  bringing  on  the  difficulty: 
He  entered  into  the  combat  at  his  own  peril.  Gibson  r.  State,  91  Ala.  64 ; 
Whatley  v.  State,  91  Ala.  108;  Karr  v.  State,  106  Ala.  1.  Upon  this 
principle,  as  well  as  for  other  considerations,  charges  1,  3,  and  4  were 
properly  refused  to  the  defendant.  Moreover,  the  e\ndence  referred 
to  was  clearly  admissible  upon  the  further  grounds,  first,  that  it  was  of 
the  res  gestae  of  the  main  fact;  and,  second,  there  was  other  e\idence 
from  which  the  jury  might  have  found  that  the  difficulty  was  the  result 
of  a  conspiracy  between  Marion  Wood,  the  defendant,  and  others  to 
assault  and  kill  Brooks. 

The  trial  court  did  not  err  in  excluding  testimony  going  to  the  par- 
ticulars of  the  pre\'ious  difficulty  between  Brooks  and  Marion  Wood. 
Stewart  v.  State,  78  Ala.  436. 

Charge  5  was  properly  refused.  It  is  not  essential  to  a  conviction 
of  an  assault  with  intent  to  murder  that  the  defendant  acted  deliber- 
ately and  with  premeditation.  Meredith  u.  State,  60  Ala.  441;  Law- 
rence V.  State,  84  Ala.  425;  Welch  v.  State,  124  Ala.  41;  Gilmore  v. 
State,  126  Ala.  21. 


SECT.  III.]  PEOPLE    r.    COOK.  569 

The  affirmative  charge  was  of  course  properly  refused  to  defendant, 
there  being  evidence  tending  to  prove  every  averment  of  the  indict- 
ment and  the  plea  being  "not  guilty." 

Affirmed. 


PEOPLE    V.   COOK. 
Supreme  Court  of  Michigan.     1878. 

[Reported  39  Michigan,  236.] 

Marston,  J.^  The  respondent  was  tried  upon  an  information  charg- 
ing him  with  having  committed  tlie  crime  of  ranrder,  and  was  convicted 
of  manslaughter.  The  case  conies  liere  upon  exceptions  before  sen- 
tence. Tlie  shooting  of  the  deceased  by  respondent  was  not  denied  on 
the  trial.  Tlie  defence  relied  on  was  justifiable  liomicide,  committed  in 
order  to  prevent  the  abduction  and  seduction  of  respondent's  sister  by 
the  deceased. 

There  is  not  a  scintilla  of  evidence  in  the  case  to  establish  this  de- 
fence, unless  the  fact  that  he  had  reason  to  believe  tliat  deceased  was 
about  to  seduce  and  debauch  his  sister  would  be  a  justification. 

It  was  said  that  the  testimony  given  on  the  trial  showed  the  I'cputa- 
tion  of  the  deceased  for  chastit_y  was  bad,  of  which  fact  the  respondent 
had  knowledge  ;  that  deceased  had  been  arrested  for  the  seduction  of  a 
Miss  Briggs ;  that  he  had  publicly  stated  in  respondent's  presence  and 
hearing  the  manner  in  which  he  had  seduced  her  ;  that  while  under 
such  arrest  he  had  stated  that  he  wanted  to  seduce  just  one  more  girl, 
Sarah  Cook,  but  this  fact  had  not  been  brought  to  respondent's  knowl- 
edge ;  that  the  night  before  the  shooting  deceased  and  Sarah  Cook 
had  been  out  together  quite  late  ;  that  on  the  morning  of  the  shooting, 
respondent's  sister,  Sarah  Cook,  left  the  breakfast  table  and  went  over 
to  the  house  of  deceased  ;  that  she  shortly  afterwards  returned,  took 
her  wearing  aoparel,  and  announced  that  she  was  going  off  with  Bate}', 
bade  the  famil}'  good-by,  and  said  they  might  never  see  her  again. 

The  defence  claimed  the  farther  fact  to  be  that  Sarah  Cook  at  that 
time  was  under  the  influence  of  drugs,  administered  to  her  by  deceased, 
in  order  to  enable  him  to  accom|)Hsh  his  purpose,  and  that  the  shooting 
was  believed  b}-  the  respondent  to  be  necessary  in  order  to  prevent  such 
a  result. 

Blackstone  says  the  English  law  justifies  a  woman  killing  one  who 
attempts  to  ravish  her,  and  so  too  the  husband  or  father  may  justify 

*  Part  of  the  opinion  only  is  given. 


570  STATE    V.   MELTON.  [CHAP.  V. 


o 


killing  a  man  who  attempts  a  rape  upon  his  wife  or  daughter ;  but  not 
if  he  takes  them  in  adulteiy  by  consent,  for  the  one  is  forcible  and  felo- 
nious but  not  the  other.  The  principle,  he  says,  which  runs  through 
all  laws  seems  to  be  this  ;  that  where  a  crime  in  itself  cai)ital  is  endeav- 
ored to  be  committed  by  Ibrce,  it  is  lawful  to  repel  that  force  by  the 
death  of  the  party  atten)pting.  It  is  not  clain)ed  that  any  direct  force 
was  attempted  in  this  case,  but  that  the  felony  intended  was  to  be 
accomplished  by  tlie  assistance  of  drugs  administered  or  to  be  admin- 
istered, and  that  w'lierc  the  power  of  resistance  is  thus  overcome,  and 
advantage  thereof  talvcn  to  violate  her  person,  the  act  would  be  rape, 
and  for  such  purpose  the  law  would  conclusively  presume  that  sufficient 
force  was  used,  at  the  time  intercourse  took  place,  to  so  characterize 
the  act.  The  present  case,  however,  falls  short  of  coming  within  the 
principles  which  would  justify  the  taking  of  life.  The  utmost  that 
can  here  be  said  is  that  the  deceased  had  used  and  was  likely  to  use 
fraudulent  means,  by  administering  drugs,  to  excite  the  passions,  or 
overcome  the  resistance  he  otherwise  would  have  been  sure  to  encounter, 
in  order  to  accomplish  his  purpose.  80  far  as  he  had  then  gone,  even 
conceding  all  that  is  claimed,  fraudulent  and  not  forcible  means  had 
been  resorted  to,  which  would  not  create  that  necessity  for  immediate 
action  on  the  part  of  the  accused,  by  the  taking  of  life,  to  prevent  an 
attempted  forcible  felony.  Ample  time  and  opportunity  existed  to  en- 
able the  accused  to  resort  to  other  available  and  adequate  means  to 
prevent  the  anticipated  injury.  The  evil  threatened  could  have  been 
prevented  by  other  means  within  the  reach  and  power  of  the  accused. 
There  was  no  such  immediate  danger,  nor  would  the  facts  warrant  the 
apprehension  of  such  immediate  danger  as  would  justify  a  resort  to  the 
Cleans  adopted. 


STATE   V.   MELTON. 
Supreme  Court  of  Missouri,  1891. 

[Reported  102  Mo.  683.] 

MACFARtANE,  J.  Defendant  was  indicted  under  section  1263,  Rev. 
St.  1879,  for  an  assault  with  intent  to  kill.  Evidence  was  offered  tend- 
ing to  prove  such  assault,  and  by  means  thereof  the  assaulted  party  was 
seriously  wounded  on  the  head.  Defendant  w^as  convicted,  and  ap- 
pealed to  this  court. ^  .  .  . 

Defendant  asked  the  following  instruction:  "  (1)  The  court  instructs 

the  jury  that,  although  they  may  believe  from  the  evidence  that  the 

defendant  struck  and  wounded  Swicegood,  yet  if  it  is  further  shown 

by  the  e\idence  that  such  striking  and  wounding  were  done  for  the  pur- 

1   Part  of  the  opinion  is  omitted.  —  Ed. 


SECT.  III.]  '  ANONYMOUS.  571 

pose  of  preventing  the  commission  of  a  felony  upon  Trvin  Melton,  his 
brother,  or  preventing  said  Swicegood  from  doing  said  Irvin  Melton 
some  great  bodily  harm,  they  will  return  a  verdict  of  not  guilty"  — 
which  the  court  amended  by  adding  thereto  the  following:  "Unless 
you  further  find  from  the  exadence  that  the  said  Ir^'in  Melton  sought 
or  brought  on  the  difficulty  with  said  Swicegood."  This  amendment 
is  complained  of.  There  was  e\'idence  tending  to  prove  that  Ir\nn 
Melton,  who  was  a  brother  of  defendant,  both  sought  and  brought  on 
the  difficulty;  in  fact,  the  evidence  tended  strongly  tc  prove  that  the 
two  brothers  went  to  the  entertainment  with  the  intention  of  creating 
a  difficulty  \\'ith  Swicegood.  The  right  to  defend  his  brother  was  no 
greater  than  the  brother's  right  to  defend  himself.  Counsel,  in  sup- 
port of  his  position  that  the  court  improperly  amended  the  instruction, 
cites  the  recent  authorities  of  this  State,  commencing  \^^th  Partlow's 
Case,  90  Mo.  608,  4  S.  W.  Rep.  14,  in  which  the  question  of  self-defense 
in  murder  cases  have  been  discussed,  and  insists  that  under  these  au- 
thorities he  had  a  right  to  the  instructions  as  asked.  According  to  this 
contention,  a  party  could  provoke  and  bring  on  a  difficulty,  and,  if 
afterwards  hard  pressed,  could  wound  and  injure  his  antagonist,  and 
go  free  of  punishment,  on  the  ground  of  self-defense.  The  entire 
scope  and  meaning  of  these  authorities  are  misapprehended.  The 
cases  cited  were  all  trials  for  murder,  and  it  was  not  held  in  these  cases 
that  self-defense,  under  the  circumstances,  acquitted  the  defendant  of 
all  crime,  but  simply  cut  down  his  offense  from  a  higher  to  a  lower  de- 
gree of  homicide.  In  the  Gilmore  Case,  95  Mo.  560,  8  S.  W.  Rep.  359, 
912,  the  question  is  made  so  clear  that  any  further  consideration  of  it 
is  useless.  These  cases  have  no  application  to  assaults  merely.  The 
amendment  of  the  instruction  was  proper.  For  the  error  in  giving  the 
first  instruction  the  judgment  is  reversed  and  cause  remanded.  All 
concur. 


ANONYMOUS. 
King's  Bench.    1506. 

[Reported  Year  Book,  21  //.  VI L  .lO,  pi.  50.] 

FiNEUX,  C.  J.  If  one  is  in  his  house,  and  liears  that  such  a  one  will 
come  to  his  house  to  beat  liini.  he  may  well  assemble  folk  of  his  friends 
and  neighbors  to  help  him,  and  aid  in  the  safeguard  of  his  person  ;  but 
if  one  were  threatened  that  if  he  should  come  to  such  a  market,  or  into 
such  a  place,  he  should  there  be  beaten,  in  that  case  he  could  not  assem- 
ble persons  to  help  him  go  there  in  personal  safety,  for  he  need  not  go 
there,  and  he  may  have  a  remed}'  b}-  surety  of  the  peace. ^    But  a  man's 

1  See  Succession  of  Irwin,  12  La.  Ann.  676.  —  Ed. 


r.72  avild's  case.  "       [chap.  v. 

house  is  his  castle  and  his  defence,  and  where  he  has  a  peculiar  right 
to  stay,  &c.  And  all  the  justices  agreed  that  a  servant  may  beat  one 
in  defence  of  his  master.  Tkemaine  J.,  said  that  a  servant  may  kill 
one  in  defence  of  liis  master's  life,  if  he  cannot  otlierwise  save  it.  T.  14. 
H.  7.  Tr.  246. 


COOPER'S   CASE. 
King's  Bench.     1639. 

[Reported  Cruhe  Car.  544.] 

Cooper  being  indicted  in  tlie  county  of  Surrey  of  the  murder  of  W.  L. 
in  Southwark  witli  a  spit,  he  pleaded  not  guilty  ;  and  upon  his  arraign- 
ment it  appeared  that  tlie  said  Cooper,  being  a  prisoner  in  the  King's 
Bench,  and  lying  in  the  house  of  one  Anne  Carricke,  who  kept  a  tavern 
in  the  Rules,  tiie  said  W.  L.  at  one  of  the  clock  in  the  night,  assaulted 
the  said  house,  and  offered  to  break  open  the  door,  and  brake  a  staple 
thereof,  and  swore  he  would  enter  the  house  and  slit  the  nose  of  the 
said  Anne  Carricke,  because  she  was  a  baw^d,  and  kept  a  bawdy-house." 
And  the  said  Cooper  dissuading  him  from  those  courses,  and  reprehend- 
ing him,  he  swore,  that  if  he  could  enter  lie  would  cut  the  said  Cooper's 
throat ;  and  he  brake  a  window  in  tlic  lower  room  of  the  house,  and 
thrust  his  rapier  in  at  the  window  against  the  said  Cooper,  who  in 
defence  of  the  house  and  himself  thrust  the  said  W.  L.  into  the  eye,  of 
which  stroke  he  died. 

The  question  was,  whether  this  were  within  the  statute  of  24  Hen'. 
8,  c.  5. 

The  Court  w^as  of  opinion,  that  if  it  were  true  he  brake  the  house 
with  an  intent  to  commit  burglary,  or  to  kill  any  therein,  and  a  party 
within  the  house  (although  he  be  not  the  master,  but  a  lodger  or 
sojourner  therein)  kill  him  who  made  the  assault  and  intended  mischief 
to  an}'  in  it,  tliat  it  is  not  felony,  but  excusable  by  the  said  statute  of 
24  Hen.  8,  c.  5,  which  was  made  in  atHrmance  of  the  common  law  ; 
wherefore  the  jur}'  were  appointed  to  consider  of  the  circumstances  of 
the  fact ;  and  they,  being  a  substantial  jurj^  of  Surrey,  found  the  said 
Cooper  not  guilty  upon  this  indictment ;  whereupon  he  was  discharged. 


WILD'S  CASE. 

Liverpool  Assizes.     1837. 

[lieporteil  2  Leirin,  214.] 

The  prisoner  was  indicted  for  manslaugiiter. 

It  ai)[)earcd  tliat  the  deceased  lind  entered  the  pi'isoner's  house  in  his 
absence.    Tlie  j)risoner  on  retuniiug  home  foiuul  liim  there,  and  desired 


SECT.  III.]  STAIE  V.   PATTERSOix.  o73 

him  to  withdraw,  but  he  refused  to  go.  Upon  this  words  arose  between 
them,  and  the  prisoner,  becoming  excited,  proceeded  to  use  force,  and 
by  a  kick  which  he  gave  to  the  deceased,  caused  an  injury  which  pro- 
duced his  death. 

Alderson,  B.  a  kick  is  not  a  justifiable  mode  of  turning  a  man  out 
of  30ur  house,  though  he  be  a  trespasser.  If  a  person  becomes  excited, 
and  being  so  excited  gives  to  another  a  kick,  it  is  an  unjustifiable  act. 

If  the  deceased  woukl  not  have  died  but  for  the  injury  lie  received, 
the  prisoner  having  unlawfully  caused  that  injury,  he  is  guilty  of  man- 
slaughter. 


STATE   V.  PATTERSON. 
Supreme  Court  of  Vermont.    1878. 

[Re]>orted  45  Vermont,  308.] 

Barrett,  J.^  It  is  not  deemed  needful  for  the  purposes  of  this  case, 
with  reference  to  its  future  prosecution,  to  discuss  specifically  any  other 
subject,  except  that  of  the  dwelling-house  being  one's  castle,  as  bearing 
upon  his  right  to  kill  or  to  use  deadly  weapons  in  defence  of  it.  This 
is  presented  in  tlie  third  request  in  behalf  of  the  respondent,  which  is, 
in  the  language  used  b}-  Holroyd,  J.,  in  charging  the  jury  in  Meade's 
Case,  iyifra,  viz. :  "The  making  of  an  attack  upon  a  dwelling,  and  espe- 
cialh-  in  the  night,  the  law  regards  as  equivalent  to  an  assault  on  a 
man's  person,  for  a  man's  house  is  his  castle."  The  purpose  of  this 
request  seems  to  have  been  to  justifv  the  killing  with  the  gun,  as  a 
lawful  mode  and  means  of  defending  the  castle,  as  well  as  the  person 
within  it.  Looking  to  the  state  of  the  evidence,  it  is  not  altogether 
obvious  what  there  was  in  the  case  to  warrant  its  being  claimed  that 
the  respondent  killed  Flanders  as  a  means  of  defending  himself  or  his 
castle.  It  was  claimed  in  behalf  of  the  prosecution,  and  the  evidence 
given  in  that  behalf  showed  that  the  gun  was  not  fired  at  Flanders  as 
a  measure  of  force,  to  repel  and  prevent  him  from  breaking  into  the 
house.  Moreover,  in  the  exceptions  it  is  said  :  "The  respondent  testi- 
fied that  he  fired  to  the  ground,  and  the  object  in  firing  was,  not  to  hit 
them,  but  to  scare  them  away."  The  respondent  seems  not  to  have 
regarded  it  a  case,  or  a  conjuncture,  in  which  it  was  needful  or  expedi- 
ent to  use  a  deadh'  weapon  as  a  means  of  forceful  resistance  to  meet 
and  repel  an  assault  on  his  house  —  whatever  such  assault  in  fact 
was  —  or  to  protect  himself  from  anj-  threatened  or  feared  assault  on 
his  person.  The  gun,  loaded  with  powder  alone,  would  have  served  all 
the  needs  of  the  occasion,  and  of  the  exigenc}'  which  the  respondent 
supposed  then  to  exist  and  to  press  upon  him. 

Nevertheless,  the  point  was  made  by  said  third  request.    It  was  indi- 

*  Part  of  the  opinion,  not  relating  to  tlic  question  of  justification,  -las  licen  omitted. 


.)/ 


STATE    V.    PATTERSON.  ^  [CHAP.  V. 


cated  in  the  charge  that  the  case  State  v.  Hooker,  17  Vt.  670,  was 
invoked  in  support  of  it,  and  it  is  cited  in  this  court  for  the  same  pur- 
pose. That  case  professes  to  decide  oiil}-  the  question  involved  in  and 
presented  by  it,  viz.,  whether  it  was  criminal  under  the  statute  for  the 
respondent  to  resist  an  otHcer  in  the  service  of  civil  process  within  his 
dwelling-house,  such  officer  having  unlawfully  l)roken  into  the  house 
for  the  purpose  of  making  such  service.  The  language  of  the  opinion 
is  to  be  interpreted  with  reference  to  the  case  and  the  question.  That 
case  in  no  respect  involved  the  subject  of  the  use  of  a  deadh'  weapon 
with  fatal  effect  in  defence  of  the  castle  ;  and  it  is  not  to  be  supposed 
that  the  judge  who  drew  up  the  opinion  was  undertaking  to  discuss  or 
propound  the  law  of  that  subject. 

To  come,  then,  to  the  subject  as  it  is  involved  in  this  case  under  said 
third  request.  In  Foster's  Crown  Law,  319,  it  is  said,  *'The  books 
sa}'  that  a  man's  house  is  his  castle  for  safet}'  and  repose  to  himself  and 
family."  In  Cook's  Case,  Cro.  Car.  537,  an  officer,  with  a  capias  ad 
satisfaciendnm,  went  with  other  officers,  for  the  purpose  of  executing 
the  same,  to  the  dwelling-house  of  the  respondent,  and,  finding  him 
within,  demanded  of  him  to  open  the  door  and  sufi'er  them  to  enter. 
He  commanded  them  to  depart,  telling  them  they  should  not  enter. 
Thereupon,  they  broke  a  window,  and  afterwards  went  to  the  door  of 
the  house  and  offered  to  force  it  open,  and  broke  one  of  the  hinges; 
whereupon  Cook  discharged  his  musket  at  the  deceased  and  hit-  him, 
and  he  died  of  the  wound.  "After  argument  at  the  bar,  all  the  justices, 
seriatim^  delivered  their  opinions,  that  it  was  not  murder,  but  man- 
slaughter ;  the  bailiff  was  slain  in  doing  an  unlawful  act  in  seeking  to 
break  open  the  house  to  execute  process  for  a  subject,  and  every  one 
is  to  defend  his  own  house.  Yet  they  all  held  it  was  manslaughter,  for 
he  might  have  resisted  him  without  killing  him  ;  and  when  he  saw  and 
shot  voluntarily  at  him,  it  was  manslaughter." 

That  was  one  of  the  earliest  cases,  and  was  full}'  considered  ;  and  it 
has  been  cited  in  all  the  books  on  criminal  law  since  its  decision  in 
1640  (loth  Car.  I.),  —  with  some  incoriectness  of  statement,  in  1  Hale 
P.  C.  458,  and  in  other  books  adopting  Hale's  text.  This  is  in  some 
measure  rectified  by  a  remark,  1  East  P.  C.  321.  322.  See  also  Roscoe 
Cr.  Ev.  758;  also  1  Bishop  Cr.  L.,  §  858,  n.  2  (5th  ed.).  It  is  to  be 
specially-  noticed  that  what  made  it  manslaughter  was  that  in  order  to 
defend  his  castle,  it  was  not  necessary  to  kill  tlie  bailiff. 

The  same  idea  of  necessity,  in  order  to  relieve  the  killing  from  being 
manslaughter,  exists  in  the  case  of  defending  one's  person,  as  stated  in 
]  Hawkins  P.  C.  113  :  *•'  Homicide  se  defendendo  seems  to  be  when  one 
who  has  no  other  possible  means  of  preserving  his  life  from  one  who 
combats  him  on  a  sudden  quarrel,  or  of  defending  his  person  from  one 
who  attempts  to  l)eat  him  (especially  if  such  attempt  be  made  upon  him 
in  his  own  house)  kills  the  person  bj-  whom  he  is  reduced  to  such  an 
inevitable  necessit}'." 

In  a  learned  note  in  2  Arclib.  Cr  L.  225.  it  is  said  :  "But  when  it  is 


SECT.  III.]  STATE    V.    I'ATTERSON.  57o 

said  that  a  man  ma}^  rightfully  use  as  much  force  as  is  necessary  for  tlie 
protection  of  his  person  and  propert}',  it  should  be  recollected  that  this 
rule  is  subject  to  this  most  important  modification,  —  that  he  shall  not, 
except  in  extreme  cases,  endanger  human  life,  or  great  bodily  harm. 
.  .  .  You  can  only  kill  to  save  life  or  limb,  or  prevent  a  great  crime, 
or  to  accomplish  a  necessary  public  dut}'."  It  is,  therefore,  clear  that  if 
one  man  deliberately  kills  another  to  prevent  a  mere  trespass  on  his  prop- 
ert_y  —  whether  tliat  trespass  could  or  could  not  otherwise  be  prevented 
■ — he  is  guilt}'  of  murder.  If,  indeed,  he  had  at  first  used  moderate 
force,  and  this  had  been  returned  with  such  violence  that  his  own  life 
was  endangered,  and  then  he  killed  from  necessity,  it  would  have  been 
excusable  homicide.  Not  because  he  could  take  life  to  save  his  prop- 
erty, but  he  might  take  the  life  of  the  assailant  to  save  his  own. 

Harcourt's  Case,  5  Eliz.,  stated  1  Hale  P.  C.  485,  486,  shows  that 
this  doctrine  is  not  new.  "  Ilarcourt,  being  in  possession  of  the  house 
by  title,  as  it  seems,  A.  endeavored  to  enter,  and  shot  an  arrow  at  them 
within  the  house,  and  Harcourt,  from  wiUiin,  shot  an  arrow  at  tliose 
that  would  have  entered,  and  killed  one  of  the  company.  This  was 
ruled  manslaughter,  and  it  was  not  se  defendendo^  because  there  was 
no  danger  of  his  life  from  them  without."  What  was  thus  ruled  is  the 
key  to  the  author's  meaning  in  the  next  following  paragraph  of  his  book, 
which  see. 

The  idea  that  is  embodied  in  the  expression  that  a  man's  house  is  his 
castle,  is  not  that  it  is  his  property,  and,  as  such,  he  has  the  right  to 
defend  and  protect  it  by  other  and  more  extreme  means  than  he  might 
lawfully  use  to  defend  and  protect  his  shop,  his  office,  or  his  barn.  The 
sense  in  which  the  house  has  a  peculiar  immunit}'  is  that  it  is  sacred  for 
the  protection  of  his  person  and  of  his  famih'.  An  assault  on  the  house 
can  be  regarded  as  an  assault  on  the  person  only  in  case  the  purpose 
of  such  assault  be  injury  to  the  person  of  the  occupant  or  members  of 
his  famil}',  and,  in  order  to  accomplish  this,  the  assailant  attacks  the 
castle  in  order  to  reach  the  inmates.  In  this  view,  it  is  said  and  settled 
that,  in  such  case,  the  inmate  need  not  flee  from  his  house  in  order  to 
escape  from  being  injured  by  the  assailant,  but  he  may  meet  him  at  the 
threshold,  and  prevent  him  from  breaking  in  by  anj-  means  rendered 
necessary  by  the  exigency  ;  and  upon  the  same  ground  and  reason  as 
one  may  defend  himself  from  peril  of  life,  or  great  bodil}'  harm,  by 
means  fatal  to  ]he  assailant,  if  rendered  necessary  by  the  exigency  of 
the  assault. 

This  is  the  meaning  of  what  was  said  bj-  Ilolroyd,  J.,  in  charging  the 
jury  in  Meade's  Case,  1  Lewin  C.  C.  184.  Some  exasperated  sailors 
had  ducked  Meade,  and  were  in  the  act  of  tlirowing  him  into  the  sea, 
when  he  was  rescued  by  the  police.  As  the  gang  were  leaving,  the}' 
threatened  that  they  would  come  by  night  and  pull  his  house  down. 
In  the  middle  of  the  night  a  groat  number  came,  making  menacing 
demonstrations.  Meade,  under  an  apprehension,  as  he  alleged,  that  his 
life  and  property  were  in  danger,  fired  a  pistol,  by  which  one  of  the 


57G^  STATE    V.    PATTERSON.  [CIIAP.  V. 

party  was  killed.  Meade  was  indicted  for  murder.  Upon  that  state  of 
facts  and  evidence,  the  judge  said  to  the  jur}- :  "A  civil  trespass  will 
not  ex(!use  tlie  firing  of  a  pistol  at  a  ti'espasser  in  sudden  resentment 
or  anger,  &c.  .  .  .  But  a  man  is  not  autliorized  to  fire  a  pistol  on  every 
intrusion  or  invasion  of  his  house.  Jle  ought,  if  he  has  reasonable 
opportunity,  to  endeavor  to  remove  him  without  having  recourse  to 
the  last  extremit}-.  But  the  making  au  attack  upon  a  dwelling,  and 
especially  at  night,  the  law  regards  as  equivalent  to  an  assault  on  a 
man's  person  ;  for  a  man's  house  is  his  castle  ;  and,  therefore,  in  the 
eye  of  the  law,  it  is  equivalent  to  an  assault;  but  no  words  or  singing 
are  equivalent  to  an  assault ;  nor  will  they  authorize  au  assault  in 
return,  &c.  .  .  .  Tiiere  are  cases  where  a  person  in  heat  of  blood  kills 
another,  that  the  law  does  not  deem  it  murder,  but  lowers  the  offence 
to  manslaughter ;  as,  where  a  party  coming  up  by  way  of  making  an 
attack,  and  without  there  being  any  previous  apprehension  of  danger, 
tlie  party  attacked,  instead  of  having  recourse  to  a  more  reasonable 
and  less  violent  mode  of  averting  it,  having  an  opportunity  so  to  do, 
fires  on  the  impulse  of  the  moment.  In  the  present  case,  if  30U  are  of 
opinion  that  the  prisoner  was  really  attacked,  and  that  the  party  were 
on  the  point  of  breaking  in,  or  likely  to  do  so,  and  execute  the  threats 
of  the  da}'  before,  he.  perhaps,  was  justified  in  firing  as  he  did.  If  you 
are  of  opinion  that  he  intended  to  fire  over  and  frighten,  then  the  case 
is  one  of  manslaughter  and  not  of  self-defence." 

The  sense  in  wliich  one's  house  is  his  castle,  and  he  may  defend  him- 
self within  it,  is  shown  b}'  what  is  said  m  1  Hale  P.  C.  486,  that  "in 
case  he  is  assaulted  in  his  own  house,  he  need  not  flee  as  far  as  he  can, 
as  in  other  cases  of  se  defende/ido,  for  he  hath  the  pi'otection  of  his 
house  to  excuse  him  from  flying,  as  that  would  be  to  give  up  the  pro- 
tection of  his  house  to  his  adversary  by  flight."  Now,  set  over  against 
that  what  is  said  in  1  Russell,  GG2,  and  the  true, distinction  between  the 
house  as  property,  on  the  one  hand,  and  as  castle  for  protection  on  the 
other,  is  very  palpable,  viz. :  "If  A.,  in  defence  of  his  house,  kill  B.,  a 
trespasser,  who  endeavors  to  make  an  entry  upon  it,  it  i.s,  at  least,  com- 
mon manslaughter,  unless,  indeed,  there  were  danger  of  life  ;  "  p.  G63. 
"But  where  the  trespass  is  barely  against  the  property  of  another,  the 
law  does  not  admit  the  force  of  the  provocation  as  sufficient  to  warrant 
the  owner  in  making  use  of  a  deadly  or  dangerous  weapon  ;  more  par- 
ticularl}'  if  such  violence  is  used  after  the  part}'  has  desisted  from  the 
trespass."  In  Carroll  /•.  State,  23  Ala.  36,  it  is  said :  "  The  owner  may 
resist  the  entry  into  his  house,  but  he  has  no  right  to  kill,  unless  it  lie 
rendered  necessary  in  order  to  prevent  a  felonious  destruction  of  his 
property,  or  to  defend  himself  against  loss  of  life,  or  great  bodily  harm." 
Cited  2  Bishop  Crira.  Law,  §  707,  5th  ed.  That  case  impresses  us  dif- 
ferently from  what  it  does  the  learned"author,  as  indicated  by  his  remark 
prefacing  the  citation. 

As  developing  and  illustrating  the  prevailing"  idea  of  the  law  as  to 
what  will  justify  homicide  se  et  sua  defendendo,  it  is  not  without  inter- 


SECT.  III.]  STATE    V.    PATTERSON. 


O/ 


est  upon  the  point  now  under  consideration,  to  advert  to  wliat  is  said 
upon  the  general  subject.  In  McNally,  5G2,  it  is  said:  "Tlie  injured 
party  may  repel  force  by  force  in  defence  of  liis  person,  habitation,  or 
propert\',  against  one  who  manifestly  intendeth  and  endeavoreth  by 
violence  or  surprise  to  couiniit  a  known  felony  upon  either.  In  these 
cases  he  is  not  obliged  to  retreat,  but  may  pursue  his  adversary  until 
he  tindeth  himself  out  of  danger  ;  and  if  in  such  conliict  he  happeneth 
to  kill,  such  killing  is  justifiable."  Wharton  incor[)orates  this  into  liis 
work  as  text.  The  same  is  found  in  the  older  books.  1  Hale  P.  C.  48;'.. 
486  ;  also  in  Foster's  Crown  Law,  273  ;  1  Russell,  GG7  ;  and  in  otliei 
books,  ad  lib.  But  to  apprehend  this  in  its  true  scope  and  application, 
it  is  important  to  have  in  mind  what  is  said  in  1  Russell,  GG8  :  ''The 
rule  clearly  extends  only  to  cases  of  felony  ;  for,  if  one  come  to  beat 
another,  or  take  his  goods  merely  as  a  trespasser,  though  the  owner 
may  justifj-  the  beating  of  him  so  far  as  to  make  him  desist,  yet  if  he 
kill  him,  it  is  manslaughter.  .  .  .  No  assault,  however  violent,  will  jus- 
tify killing  the  assailant  under  a  plea  of  necessity,  unless  there  be  a 
manifestation  of  felonious  intent."  See  Archb.  Crim.  Law,  221,  cited 
9  C.  &  P.  24. 

This  covers  the  cases  of  statutory  justification  of  homicide,  both  under 
our  own,  and  under  the  English  statutes,  and,  in  principle,  and  in  rea- 
son, it  is  in  keeping  with  the  common  law  as  to  se  defendendo,  in  defining 
the  scope  of  which  in  this  respect,  it  is  well  laid  down  that,  "  before  a 
person  can  avail  himself  of  the  defence  that  he  used  a  weapon  in  defence 
of  his  life,  it  must  appear  that  that  defence  was  necessary  to  protect 
his  own  life,  or  to  protect  himself  from  such  serious  bodily  harm  as 
would  give  him  reasonable  apprehension  that  his  life  was  in  immediate 
danger."     1  Russell,  661. 

The  law  of  the  subject,  as  given  in  the  books  thus  cited  and  referred 
to,  seems  to  have  been  adequately  apprehended  by  the  court,  and,  so 
far  as  we  can  judge  from  what  is  shown  b}'  the  record  before  us,  it  was 
not  administered  erroneously  or  improperl}'  in  the  trial,  as  against  the 
respondent. 

If  it  were  to  be  assumed  that  the  defence  miglit  legitimately  claim 
that  there  was  an  assault  on  tlie  house,  with  the  intent  either  of  taking 
the  life  of  the  respondent  or  doing  to  him  great  bodily  harm,  the 
respondent  would  be  justified  in  using  a  deadly  weapon,  if  it  should  be 
necessary  in  order  to  prevent  the  perpetration  of  such  crime,  or  if, 
under  the  existing  circumstances  attending  the  emergenc}',  the  respond- 
ent had  reason  to  believe,  and  was  warranted  in  believing,  and,  in  fact, 
did  believe,  that  it  was  necessary  in  order  to  prevent  the  commission 
of  such  crime.  In  case  the  purpose  of  the  assailant  was  to  take  hfe, 
or  inflict  great  bodily  harm,  and  the  object  of  his  attack  (if  there  was 
such  attack)  upon  the  house  was  to  get  access  to  the  inmate  occupying 
the  same,  for  sucli  purpose,  the  same  means  might  lawfully  be  used  to 
prevent  him  from  breaking  in  as  might  be  used  to  prevent  him  from 
making  the  harmful  assault  upon  the  person,  in  case  the  parties  were 


578  KEEDER    V.    rURDY.  [CHAP.  V. 

met  face  to  face  in  any  other  place.  In  either  case  the  point  of  justi- 
fication, is  that  such  use  of  I'atal  means  was  necessary  in  order  to  the 
rightful,  effectual  protection  of  the  respondent,  or  his  family,  from  the 
threatened  or  impending  peril. 

We  have  been  led  to  this  discussion  and  exposition  of  the  law  as  to 
the  defence  of  the  dwelling  liotisc  on  account  of  the  somewhat  frag- 
mentary and  disjointed  condition  in  whicli  it  is  done  up  in  the  books 
and  cases  of  (;riminal  law.  niid  for  the  purpose  of  rendering  as  explicit 
as  we  are  al)le  the  views  of  this  court  on  that  subject,  as  it  has  been 
brouglit  into  question  and  debate  in  the  case  in  liand.  In  this  exposi- 
tion, and  in  the  views  embodied  in  this  opinion,  all  the  members  of  the 
court  concur. 

The  other  subjects  involved  in  grounds  and  points  of  defence,  a"s 
shown  by  the  bill  of  exceptions,  and  upon  which  the  court  gave  instruc- 
tions to  the  jurj'.  do  not  seem  to  require  discussion. 

The  verdict  is  set  aside,  and  new  trial  granted. 


REEDER  V.   PURDY. 
Supreme  Court  of  Illinois,  1866. 

[Reported  41  III.  279.] 

Lawrence,  J.  These  two  cases,  although  separately  tried,  depend 
upon  the  same  facts  and  present  similar  questions,  and  it  will  be  more 
convenient  to  dispose  of  both  in  one  opinion. 

In  October,  1862,  Reeder,  claiming  to  be  the  owner  of  a  house  occu- 
pied by  Purdy  and  his  wife,  entered  it,  accompanied  by  the  other 
appellants,  for  the  purpose  of  taking  possession.  Purdy  was  not  at 
home.  Mrs.  Purdy  refused  to  leave,  whereupon  Reeder  commenced 
putting  the  furniture  out  of  doors.  She  resisted  this,  and  he  seized  her 
and  held  her  by  the  wrists,  while  Baker,  one  of  the  co-defendants,  con- 
tinued to  remove  the  furniture.  This  was  somewhat  damaged,  and 
some  slight  injury  was  done  to  the  wrists  of  Mrs.  Purdy  by  the  force 
applied  in  holding  her.  The  appellants  finally  abandoned  their  attempt 
to  take  possession  and  withdrew. 

Two  actions  of  trespass  have  been  brought,  one  by  Purdy  alone,  and 
one  by  Purdy  and  wife  jointly.  The  declaration  in  the  suit  brought  by 
Purdy  contains  three  covmts,  the  first  being  for  the  assault  upon  his 
wife,  the  second  for  the  injury  to  the  personal  property,  and  the  third 
for  breaking  his  close  and  carrying  off  his  furniture.  The  declaration 
in  the  suit  of  Purdy  and  wife  contains  two  counts,  both  of  which  are 
for  the  assault  upon  the  wife.  There  were  pleas  of  not  guilty,  and  an 
agreement  that  all  defenses  might  be  made  under  them.     A  verdict 


SECT.  III.]  REEDER    V.    PURDY.  579 

for  the  plaintiflf  of  S450  in  one  case,  and  $500  in  the  other,  was  returned 
by  the  jury,  and  a  judgment  was  rendered  upon  it,  from  which  the  de- 
fendants g^ppealed. 

It  is  insisted  by  the  appellants  that  Reeder,  being  the  owner  of  the 
premises,  had  a  right  to  enter,  and  to  use  such  force  as  might  be  neces- 
sary to  overcome  any  resistance,  and  that  he  cannot  be  made  liable  as  a 
trespasser,  although  it  is  admitted  he  might  have  been  compelled  to 
restore  to  Purdy,  through  an  action  of  forcible  entry  and  detainer,  the 
possession  thus  forcibly  taken.  The  court  below  instructed  otherwise, 
and  this  ruling  of  the  court  is  assigned  for  error. 

We  should  not  consider  the  question  one  of  much  difficulty,  were  it 
not  for  the  contradictory  decisions  in  regard  to  it,  and  we  must  admit 
that  the  current  of  authorities,  up  to  a  comparatively  recent  period, 
is  adverse  to  what  we  are  convinced  must  be  declared  to  be  the  law  of 
the  State.  But  the  rule  cannot  be  said  to  have  been  firmly  or  authori- 
tatively settled  even  in  England,  for  Erskine,  J.,  observes  in  Newton  v. 
Harland,  1  Man.  &  Gr.  644  (39  E.  C.  L.  .581),  that  "it  was  remarkable 
a  question  so  hkely  to  arise,  should  never  have  been  directly  brought 
before  any  court  in  banc  until  that  case."  This  was  in  the  year  1840, 
and  all  the  cases  prior  to  that  time,  in  which  it  was  held  that  the  owner 
in  fee  could  enter  with  a  strong  hand,  without  rendering  himself  liable 
to  an  action  of  trespass,  seem  to  have  been  merely  at  7usi  privs,  like 
the  oft-quoted  case  of  Taunton  v.  Costar,  7  T.  R.  431.  Still  this  was 
the  general  language  of  the  books.  But  the  point  had  never  received 
such  an  adjudication  as  to  pass  into  established  and  incontrovertible 
law,  and  a  contrary  rule  was  held  by  Lord  Lyndhurst  in  Hilary  r.  Gay, 
6  C.  &  P.  &  284  (25  E.  C.  L.  398).  "^But  in  Newton  r.  Harland,  already 
referred  to,  the  Court  of  Common  Pleas  gave  the  question  mature  con- 
sideration, and  finally  held,  after  two  arguments,  that  a  landlord  who 
should  enter  and  expel  by  force  a  tenant  holding  over  after  expiration  of 
his  term,  would  render  himself  liable  to  an  action  for  damages.  But 
the  later  case  of  Meriton  v.  Combs,  67  E.  C.  L.  788,  seems  to  recognize 
the  opposite  rule,  and  we  must,  therefore,  regard  a  question  which  one 
would  expect  to  find  among  the  most  firmly  settled  in  the  law  as  still 
among  the  controverted  points  of  Westminster  Hall. 

In  our  own  country  there  is  the  same  conflict  of  authorities.  In  New 
York  it  has  been  uniformly  held,  that,  under  a  plea  of  libcrnm  tcne- 
mentum,  the  landlord,  who  has  only  used  such  force  as  might  be  neces- 
sary to  expel  a  tenant  holding  over,  would  be  protected  against  an 
action  for  damages.  Hyatt  v.  W^ood,  4  Johns.  150,  and  Ives  v.  Ives,  13 
Id.  235.  In  Jackson  v.  Farmer,  9  Wend.  201,  the  court,  while  recogniz- 
ing the  rule  as  law,  characterize  it  as  "  harsh,  and  tending  to  the  public 
disturbance  and  individual  conflict."  Kent,  in  his  Commentaries, 
states  the  principle  in  the  same  manner,  but  in  the  later  editions  of  the 
work,  reference  is  made  by  the  learned  editor,  in  a  note,  to  the  case  of 
Newton  v.  Harland,  above  quoted,  as  laying  down  "  the  most  sound  and 


580  KEEDER   V.   PURDY.  [cHAP.  V. 

salutary  doctrine."  In  Tribble  v.  Trance,  7  J.  J.  Marsh.  598,  the  court 
held,  that,  notwithstanding  the  Kentucky  statute  of  forcible  entry  and 
detainer,  the  owner  of  the  fee,  having  a  right  of  entry,  may  use  such 
force  as  may  be  necessary  to  overcome  resistance,  and  protect  himself 
against  an  action  of  trespass,  imder  a  plea  of  lihcruvi  tencrncntum.  On 
the  other  hand,  the  Supreme  Court  of  Massachusetts  has  held,  that, 
although  trespass  quare  clausum  may  not  lie,  yet,  in  an  action  of  tres- 
pass for  assault  and  battery,  the  landlord  must  respond  in  damages, 
if  he  has  used  force  to  dispossess  a  tenant  holding  over.  The  court  say 
"he  may  make  use  of  force  to  defend  his  lawful  possession,  but  being 
dispossessed,  he  has  no  right  to  recover  possession  b}-  force,  and  by  a 
breach  of  the  peace."  Sampson  v.  Henry,  11  Pick.  379.  See  also  Ellis 
1).  Page,  1  id.  43;  Sampson  v.  Henry,  13  id.  36;  Header  v.  Stone, 
7  Mete.  147,  and  Moore  v.  Boyd,  24  Maine,  242.  But  by  far  the  most 
able  and  exhaustive  discussion  that  this  question  has  received,  was  in 
the  case  of  Dustin  v.  Cowdry,  23  Vt.  G35,  in  which  Mr.  Justice  Red- 
field,  delivering  the  opinion  of  the  court,  shows,  by  a  train  of  reasoning 
which  compels  conviction,  that,  in  cases  of  this  character,  the  action 
of  trespass  will  lie.  And  he  also  says:  "whether  the  action  should 
be  trespass  quare  clausum,  or  assault  and  battery,  is  immaterial,  as 
under  this  declaration,  if  the  defendant  had  pleaded  soil  and  freehold, 
as  some  of  the  cases  hold,  the  plaintiff  might  have  new  assigned  the 
trespass  to  the  person  of  the  plaintiff',  and  a  jury,  under  proper  instruc- 
tions, would  have  given  much  the  same  damages,  and  upon  the  same 
evidence,  in  whatever  form  the  declaration  is  drawn."  The  case  of 
Massey  v.  Scott,  32  Vt.,  cited  as  inconsistent  with  this  case,  does  not  in 
fact  conflict  with  it.  It  only  holds,  that  trespass  quare  clausum  will 
not  lie  in  behalf  of  a  tenant  for  an  entry  not  within  the  statute  of 
forcible  entry  and  detainer. 

In  tliis  conflict  of  authorities  we  must  adopt  that  rule  which,  in  our 
judgment,  rests  upon  the  sounder  reason.  We  cannot  hesitate,  and 
were  it  not  for  the  adverse  decision  of  courts,  which  all  lawyers  regard 
with  profound  respect,  we  should  not  deem  the  question  obscured  by 
a  reasonable  doubt.  The  reasoning  upon  which  we  rest  our  conclu- 
sion lies  in  the  briefest  compass,  and  is  hardly  more  than  a  simple 
syllogism.  The  statute  of  forcil^le  entry  and  detainer,  not  in  terms,  but 
by  necessary  construction,  forbids  a  forcible  entry,  even  by  the  owner, 
upon  the  actual  possession  of  another.  Such  entry  is,  therefore,  unlawful. 
If  unlawful  it  is  a  trespass,  and  an  action  for  the  trespass  must  neces- 
sarily lie.  It  is  urged  that  the  only  remedy  is  that  given  by  the  statute — 
an  action  for  the  recovery  of  the  possession.  But  the  law  could  not 
expel  liim  who  has  entered  if  his  entry  was  a  lawful  entry,  and  if  not 
lawful  all  the  consequences  of  an  unlawful  act  must  attach  to  it.  The 
law  is  not  so  far  beneath  the  dignity  of  a  scientific  and  harmonious 
system  that  its  tribunals  must  hold  in  one  form  of  action  a  particular 
act  to  be  so  illegal  that  immediate  restitution  must  be  made  at  the 


SECT.  III.]  REEDER   V.   PUEDY.  '        581 

costs  of  the  transgressor,  and  in  another  form  of  action  that  the  same 
act  was  perfectly  legal,  and  only  the  exercise  of  an  acknowledged  right. 
It  is  urged  that  the  owner  of  real  estate  has  a  right  to  enter  upon  and 
enjoy  his  own  property.  Undoubtedly,  if  he  can  do  so  without  a  forci- 
ble disturbance  of  the  possession  of  another;  but  the  peace  and  good 
order  of  society  require  that  he  shall  not  be  permitted  to  enter  against 
the  will  of  the  occupant,  and  hence  the  common  law, right  to  use  all 
necessary  force  has  been  taken  away.  He  may  be  wrongfully  kept  out 
of  possession,  but  he  cannot  be  permitted  to  take  the  law  into  his  own 
hands  and  redress  his  own  wrongs.  The  remedy  must  be  sought  through 
those  peaceful  agencies  which  a  ci\'ilized  community  pro\'ides  for  all 
its  members.  A  contrary  rule  befits  only  that  condition  of  society  in 
which  the  principle  is  recognized  that 

He  may  take  who  has  the  power, 
And  he  may  keep  who  can. 

If  the  right  to  use  force  be  once  admitted,  it  must  necessarily  follow 
as  a  logical  sequence,  that  so  much  may  be  used  as  shall  be  necessary 
to  overcome  resistance,  even  to  the  taking  of  human  life.  The  wisdom 
of  confining  men  to  peaceful  remedies  for  the  recovery  of  a  lost  posses- 
sion is  well  expressed  by  Blackstone,  book  4,  p.  148:  "  An  eighth  offense," 
he  says,  "against  the  public  peace,  is  that  of  a  forcible  entry  and  de- 
tainer, which  is  committed  by  violently  taking  or  keeping  possession  of 
lands- and  tenements  with  menaces,  force  and  arms,  and  without  the 
authority  of  law.  This  was  formerly  allowable  to  every  person  dis- 
seized or  turned  out  of  possession,  unless  his  entry  was  taken  away  or 
barred  by  his  own  neglect  or  other  circumstances,  which  were  explained 
more  at  length  in  a  former  book.  But  this  being  found  very  prejudicial 
to  the  public  peace,  it  was  thought  necessary,  by  several  statutes,  to 
restrain  all  persons  from  the  use  of  such  \nolent  methods,  even  of  doing 
themselves  justice,  and  much  more  if  they  have  no  justice  in  their 
claim.  So  that  the  entry  now  allowed  by  law  is  a  peaceable  one;  that 
forbidden,  is  such  as  is  carried  on  with  force,  Aaolence  and  unusual 
weapons."  In  this  State,  it  has  been  constantly  held  that  any  entry 
is  forcible,  within  the  meaning  of  this  law,  that  is  made  against  the  will 
of  the  occupant. 

We  state,  then,  after  a  full  examination  of  this  subject,  that  in  our 
opinion  the  statutes  of  forcible  entry  and  detainer  should  be  construed 
as  taking  away  the  pre\^ous  common  law  right  of  forcible  entry  by 
the  owner,  and  that  such  entry  must  be  therefore  held  illegal  in  all 
forms  of  action. 

There  are,  however,  some  minor  points  upon  which  both  of  these 
judgments  must  be  reversed.^ 

^  The  remainder  of  the  opinion  is  omitted.  — Ed. 


582        -  SULLIVAN   V.  OLD   COLONY   RAILROAD.  [CHAP.  V. 


SULLIVAN  V.  OLD  COLONY  RAILROAD. 
Supreme  Judicial  Court  of  Massachusetts,  1888. 

[Reported  U8  Mass.  119.] 

Morton,  C.  J.  The  plaintiff  was  a  passenger  upon  the  defendant's 
railroad,  ha\-ing  a  ticket  which  entitled  him  to  be  carried  from  Boston 
to  his  home  in  Randolph.  It  appeared  at  the  trial  that  he  was  drunk 
and  disorderly,  using  indecent  language,  to  the  annoyance  of  the  other 
passengers;  that  he  was  requested  to  be  quiet  and  refused;  and  there- 
upon the  officers  of  the  defendant,  who  were  also  railroad  police  offi- 
cers, not  intending  to  arrest  him,  but  to  remove  him,  so  as  to  protect 
the  other  passengers  from  annoyance,  removed  him  from  the  cars  to 
the  platform  of  the  depot  at  an  intermediate  station,  and  carried  him 
along  the  platform  to  the  baggage  car,  which  was  the  third  car  forward 
of  the  car  in  which  he  had  been  riding,  using  only  reasonable  force; 
and  that  he  rode  in  the  l)aggage  car  to  Holbrook,  a  station  near  his 
home  in  Randolph,  without  attempting  or  expressing  any  desire  to 
leave  the  train. 

It  is  clear  that,  under  these  circumstances,  it  was  the  right  and  duty 
/  of  the  defendant's  officers  to  protect  the  other  passengers  by  remov- 
ing the  plaintiff  from  the  car  in  which  he  was  riding.  Vinton  v.  Mid- 
dlesex Railroad,  11  Allen,  304.  They  might  have  left  him  at  the  place 
where  he  was  removed,  and  if,  after  being  removed,  he  had  demanded 
to  be  released,  or  had  refused  to  enter  the  baggage  car,  it  would  pre- 
sent a  different  question;  but  he  did  neither,  and  the  act  of  putting  him 
in  the  baggage  car  was  done  in  kindness  to  him,  for  the  purpose  of 
carrying  him  to  his  home,  which  the  jury  may  well  have  found  to 
have  been  reasonable  and  proper,  and  not  to  have  been  an  assault  or 
imprisonment. 

The  principal  contention  of  the  plaintiff  is,  that  they  had  no  right 
to  remove  him  except  by  arresting  him  under  §  18,  c.  103,  of  the  Pubhc 
Statutes.  This  statute,  which  provides  that  railroad  police  officers  may 
arrest  a  noisy  or  disorderly  passenger  without  a  warrant,  and  remove 
him  to  the  baggage  or  other  suitable  car,  and  confine  him  there  until 
the  train  arrives  at  some  station  where  such  passenger  can  be  placed  in 
charge  of  an  officer,  who  shall  take  him  to  a  place  of  lawful  detention, 
was  intended  to  confer  additional  powers  upon  officers  of  the  railroad 
who  arc  appointed  railroad  police  officers,  and  not  to  take  away  the 
common  law  right  of  the  railroad  corporation,  by  its  servanTs~dF" 
agents,  to  remove  a  passenger  who  is  noisy  and  disorderly  to  the  an- 
noyance of  the  other  passengers.  Beckwith  v.  Cheshire  Railroad,  143 
Mass.  68. 


SECT,  111.]  YODER    V.    YODER.  583 

-m 

In  the  case  at  bar,  the  court  properly  refused  to  instruct  the  jury, 
as  requested  by  the  plaintiff,  that  the  defendant  had  no  legal  right  to 
remove  the  plaintiff  in  the  manner  set  out  in  the  evidence.  And  the  in- 
structions given  were  sufficiently  favorable  to  the  plaintiff. 

Exceptions  overruled. 


HUNT  V.   CASKEY. 
Supreme  Court  of  New  Jersey,  1905. 
[Reported  60  Atl.  Rep.  42.] 

Per  Curiam.  This  is  an  action  for  damages  for  assault  and  battery. 
At  the  time  of  the  occurrence  the  defendant  was  secretary  and  treas- 
urer, and  also  executive  officer,  of  the  Hunt  Penworks,  in  Camden. 
The  plaintiff  had  formerly  been  the  president  of  that  concern,  but  had 
been  removed  from  that  position  for  improper  conduct  which  was  preju- 
dicial to  the  company's  interests.  He  was  on  the  company's  prem- 
ises at  the  time  of  the  assault,  apparently  for  the  purpose  of  surrep- 
titiously acquiring  information  with  relation  to  its  operations.  He  was 
ordered  to  leave  the  premises  by  the  defendant,  and,  upon  his  refusal 
to  leave,  the  assault  was  committed.  The  e\adence  makes  it  quite 
plain  that  the  plaintiff  was  quite  severely  beaten,  and  that  the  as- 
sault was  without  legal  justification,  the  force  used  being  greatly  in 
excess  of  that  which  was  necessary  to  be  exerted  in  order  to  eject  him 
from  the  premises.  For  this  reason  a  verdict  in  his  favor  was  properly 
rendered. 

The  amount  of  the  recovery  ($3,000),  however,  was,  in  our  judgment, 
excessive.  If  the  plaintiff  will  consent  to  have  the  verdict  reduced  to 
$1,000,  he  may  enter  judgment  for  this  amount;  otherwise  the  rule  to 
show  cause  will  be  made  absolute. 


YODER  V.  YODER. 
Supreme  Court  of  Pennsylvania,  1913. 

[Reported  239  Pa.  12.] 

Potter,  J.  Under  the  charge  of  the  court  in  this  case,  the  verdict 
of  the  jury  must  be  accepted  as  establishing  the  fact  that  the  defend- 
ant did  not  direct  the  arrest  of  the  plaintiff,  but  merely  directed  the 


584  BAILEY    V.    PEOPLE.  [CHAP.  V. 

officers  to  remove  him  from  the  hotel  owned  by  the  defendant,  and  in 
and  about  which  the  plaintiff  had  been  engaged  as  an  employee  of  the 
defendant.  The  record  shows  testimony  clearly  sufficient  to  sustain 
a  finding  by  the  jury  that,  after  defendant  had  repeatedly  demanded  of  |. 

plaintiff  that  he  should  obey  his  orders,  and  had  received  no  satisfac- 
tory reply,  he  ordered  plaintiff  from  the  building,  and  the  latter  refused 
to  go,  before  the  officers  were  sent  for  and  instructed  to  take  him  out. 
In  this  action  the  defendant  was  -within  his  right.  He  was  the  owner 
of  the  hotel,  and  under  the  agreement  with  plaintiff  the  latter  acquired 
no  interest  in  the  property  but  had  only  an  interest  in  the  profits  aris- 
ing from  the  business.  As  owner,  the  defendant  had  the  riglit  to  order 
plaintiff  from  the  premises,  and  in  case  of  refusal  had  the  right  to  re- 
move him  by  force,  if  necessary.  Ht  pursued  the  course  which  was  com- 
mended by  this  court  in  Sloan  v.  Schomaker,  136  Pa.  382,  where  it  was 
said  (p.  390),  that  when  the  plaintiffs  were  ordered  from  defendant's 
store,  "  it  was  their  legal  duty  to  go.  In  strict  law  defendant  might 
then  have  used  sufficient  force  to  put  them  out  with  his  own  hands.  In- 
stead of  doing  so,  he  adopted  the  prudent  and  commendable  course 
of  sending  for  an  officer."  The  case  is  no  better  for  the  plaintiff  if  he 
be  regarded  as  being  at  the  time  in  the  ser^^ce  of  the  defendant,  for 
even  then  it  Avas  his  legal  duty  to  go,  when  ordered  to  leave.  If  the 
order  amounted  to  a  wrongful  discharge,  he  had  his  remedy  by  suit  for 
damages  for  breach  of  the  contract  of  employment,  as  in  iVllen  v.  Col- 
liery Engineers  Co.,  196  Pa.  512,  and  Coates  v.  Steel  Co.,  234  Pa.  199. 
The  issue  of  fact  involved  as  to  the  terms  of  the  order  given  by  the  de- 
fendant to  the  officers  was  fully  and  fairly  submitted  to  the  jury  by  the 
trial  judge.  They  have  found  as  a  fact  that  the  defendant  did  not  go 
beyond  ordering  the  officers  to  remove  the  plaintiff  from  the  premises. 
The  assignments  of  error  are  overruled,  and  the  judgment  is  affirmed. 


BAILEY  V.   PEOPLE. 
Supreme  Court  of  Colorado,  1913. 

[Reported  54  Colo.  337.] 

Scott,  J.  Joseph  E.  Bailey,  defendant  in  error,  was  con\-icted  in 
the  district  court  of  the  city  and  county  of  Denver,  on  the  charge  of  the 
murder  of  Eugene  H.  Smith.  The  verdict  was  that  of  murder  in  the 
first  degree.  The  wife  of  Smith  was  a  sister  of  the  defendant  Bailey. 
The  homicide  occurred  on  the  18th  day  of  July,  1910.  It  appears  that 
because  of  a  quarrel  between  Smith  and  his  wife,  and  of  the  \iolerit 
beating  and  abuse  of  her  by  Smith  on  the  15th  day  of  July,  the  wife 


SECT.  III.]  BAILEY    V.    PEOPLE.  585 

with  her  two  children  left  home  and  took  refuge  with  her  mother  at 
the  house  where  the  defendant  and  his  wife  resided.  Tliis  seems  to  have 
been  but  one  of  many  similar  occurrences. 

At  about  ten  o'clock  on  the  evening  of  the  18th,  Smith  called  over 
the  telephone  demanding  that  he  be  permitted  to  talk  with  his  wife, 
which  was  refused  by  the  mother  who  answered  the  telephone,  where- 
upon Smith  replied  with  \'ile  and  abusive  language,  which  caused  the 
mother  to  hang  up  the  receiver.  About  fifteen  minutes  after  this,  Mrs. 
Smith's  little  boy,  by  a  former  marriage,  who  was  in  the  yard  for  the 
pur]X)se  of  sleeping  there,  and  who  had  heard  his  grandmother  talk 
over  the  telephone,  came  running  into  the  house  and  shouted  to  his 
mother  that  he,  meaning  Smith,  was  coming.  It  seems  that  all  of  the 
occupants  of  the  house  had  at  this  time  retired,  or  were  in  the  act  of 
retiring.  Upon  hearing  the  boy's  cry,  Mrs.  Smith  ran  into  the  bedroom 
occupied  by  the  defendant  and  his  wife,  and  called  to  him. 

Mrs.  Smith's  testimony  upon  this  point  is  in  substance  as  follows: 

"I  looked  out  of  the  window,  looked  northward;  I  was  undressed  to 
go  to  bed;  he  was  under  the  arc  lights.  He  was  almost  running.  He 
was  just  plunging,  just  coming  in  a  jump  like  that  (indicating).  It 
frightened  me  so;  I  could  see  from  his  appearance  that  he  was  in  a 
very  angry,  bad  mood,  and  I  ran  to  my  brother's  bedroom  door  and 
called  to  him  that  there  he  came.  I  said  to  my  brother:  'Get  up  out 
of  bed,  yes,  there  he  comes,'  and  I  said,  'For  God's  sake,  don't  let  him 
come  in  here;  if  you  do  he  will  kill  the  whole  family  —  he  will  kill 
mother  and  me.'"  ' 

The  defendant  thereupon  arose  from  his  bed,  secured  a  revolver  and 
called  out  to  Smith  through  the  window,  demanding  that  he  should  not 
come  into  the  yard.  He  then  went  from  his  bedroom  into  a  room  from 
which  a  door  opened  upon  a  porch,  and  upon  which  Smith  was  entering. 
The  defendant  called  to  Smith,  it  appears  four  times,  and  demanded 
that  he  should  not  come  in.  In  reply  to  either  the  first  or  second  re- 
quest Smith  said,  "  I  will  come  in  and  get  the  whole  God  damned  push 
of  you." 

Smith  finally  opened  the  screen  door  as  if  coming  in,  when  the  de- 
fendant said, "  I  tell  you  for  God's  sake  don't  try  to  enter  this  side  porch 
or  the  house;  if  you  do  I  will  shoot  you."  About  this  time  the  defend- 
ant fired  the  shot  that  resulted  in  the  death  of  Smith.  The  defendant 
was  crippled  in  his  right  hand  from  an  injury  recentjy  sustained,  and 
was  compelled  to  use  the  revolver  with  his  left  hand.  Smith  was  a  very 
large  and  powerful  man,  much  larger  than  the  defendant. 

It  appears  that  earlier  in  the  day  R.  L.  McDonald,  a  brother-in-law, 
at  the  request  of  Mrs.  Smith,  went  to  Smith  to  see  if  an  adjustment  of 
their  troul)le  could  not  be  had,  and  at  which  time  Smith  said,  "  Well, 
if  she  will  come  back  and  live  with  me  and  do  just  as  I  say,  I  will  live 
with  her,  and  if  she  won't,  God  damn  her,  I  will  kill  her." 

A  witness  named  Tyler,  who  was  at  the  time  living  at  the  house  of 


586  BAILEY   V.    PEOPLE.  [CHAP.  V. 

the  Smiths',  also  testified  that,  "On  the  morning  of  the  shooting, 
Smith  showed  me  a  gun  and  said,  '  It  was  a  God  damn  good  thing  you 
got  me  drunk  last  night,  or  I  would  have  gone  down  and  cleaned  out  the 
whole  God  damn  push.'  Smith  came  home  on  the  morning  of  the  18th 
of  July  (the  day  of  the  shooting)  about  two  o'clock.  He  had  been 
drinking.  He  came  into  my  room  and  raised  a  fuss  with  me;  struck 
me  and  used  —  (the  witness  repeats  \'ile  language  of  deceased  towards 
him).  I  had  a  thirty-eight  revolver  under  my  pillow;  I  drawed  the 
gun  on  him  and  stood  back  on  the  opposite  side  of  the  bed  until  I 
could  get  down  the  stairway,  and  when  I  got  down  the  stairway,  I  got 
out  and  stayed  out  the  rest  of  the  night.  Mrs.  Smith  wasn't  there; 
just  I  and  Smith." 

There  are  many  assignments  of  error,  but  in  as  much  as  the  case  must 
be  reversed  by  reason  of  certain  prejudicial  instructions  given,  it  will 
not  be  necessary  to  consider  other  assignments. 

The  court,  over  the  objection  of  the  defendant,  gave  instructions 
Nos.  10  and  21,  which  are  so  clearly  erroneous  and  prejudicial  to  the 
rights  of  the  defendant,  and  are  so  closely  connected  in  their  subject 
matter  as  to  make  it  convenient  to  consider  them  together.  These  in 
full  are  as  follows: 

"  No.  10.  That  if  you  believe  from  the  evidence,  that  the  deceased, 
Eugene  H.  Smith,  attempted  to  enter  the  house  of  Joseph  E.  Bailey  or 
his  mother,  wherein  he  resided,  and  that  at  the  time  he  attempted  to 
enter  the  same  he  feloniously  intended  to  assault  or  kill  any  of  the 
inmates  thereof,  then  you  are  instructed  that  the  doctrine  that  every 
man's  house  is  his  own  castle,  would  apply,  and  the  defendant  Joseph  E. 
Bailey  is  not  required  under  the  law  to  retreat  from  the  position  or  stand 
which  he  had  taken;  but  upon  the  other  hand,  if  you  believe  that  the 
said  Smith  attempted  to  enter  the  said  house  for  the  purpose  of  con- 
versing with  and  inducing  his  wife  to  leave  the  said  house,  or  for  the 
purpose  of  using  physical  force,  in  endeavoring  to  do  so,  and  had  no 
intention  of  injuring  or  attempting  to  injure  any  of  the  inmates  of  the 
said  house  further  than  to  exercise  a  reasonable  supervision  and  con- 
trol over  his  wife  and  her  conduct,  then  you  are  instructed  that  there 
is  no  self-defense  in  this  case,  and  no  justifiable  kiUing,  and  the  said 
Joseph  Bailey's  killing  of  the  deceased  was  unlawful,  unless  you  believe 
from  the  evidence,  that  the  circumstances  attending  the  entry  into  the 
house  was  of  such  a  character  as  would  lead  a  reasonable  man  under  like 
circumstances  to  believe  that  he  or  the  inmates  of  the  said  house  were 
about  to  receive  great  bodily  injury." 

"No.  21.  The  court  instructs  the  jury:  That  the  deceased,  Eugene 
H.  Smith,  as  the  husband  of  the  sister  of  the  defendant,  Joseph  E. 
Bailey,  had  a  right  to  exercise  such  reasonable  control  over  her  as  was 
necessary  to  conduce  to  the  proper  establishment  and  maintenance  of 
his  household  as  the  head  of  a  family;  and  as  such  husband  had  a 
riglit  to  enter,  in  a  lawful  manner,  the  house  or  houses  of  any  person 


SECT.  III.]  BAILEY  V.   PEOPLE.        \  587 

whomsoever,  for  the  purpose  of  talking  with  and  procuring  his  said 
wife  to  leave  the  said  house,  if  he  so  desired,  and  had  a  right  to  use  such 
reasonable  force  and  persuasion  as  was  necessary  to  induce  her  to 
leave  the  house  of  her  mother  and  come  back  to  her  home  with  him; 
and  no  person,  not  even  her  brother,  Joseph  E.  Bailey,  had  a  right  to 
interfere  with  him  in  the  exercise  of  such  reasonable  force  or  persua- 
sion; and  if  you  believe  from  the  e\adence,  beyond  a  reasonable  doubt, 
that  the  deceased,  Eugene  "H.  Smith,  left  his  home  on  the  evening  of 
July  18th,  and  after  telephoning  to  the  house  of  Mrs.  Bailey,  went 
there  for  the  purpose  of  seeing  his  wife  and  talking  with  her  and  en- 
deavoring to  persuade  and  induce  her  to  leave  the  house  of  the  said  Mrs. 
Bailey,  her  mother,  or  to  talk  over  their  family  affairs  and  difficulties, 
and  that  he  had  no  intention  to  inflict  bodily  harm  or  injury  upon  the 
persons  in  said  house,  then  you  are  instructed  that  there  is  no  self- 
defense  in  this  case  and  no  justification  for  the  killing  of  the  said 
Eugene  H.  Smith  by  the  said  Joseph  E.  Bailey." 

These  instructions  not  only  announce  such  palpable  misstatements 
of  the  law  as  to  prejudice  the  rights  of  the  defendant,  but  go  to  the 
extent  of  proclaiming  a  doctrine  concerning  the  relation  of  husband 
and  wife  as  to  appear  nothing  less  than  monstrous  at  this  period  of  our 
civilization. 

The  jury  are  here  told  that  in  order  that  the  doctrine  of  self-defense 
may  apply,  they  must  believe  from  the  e\ndence  that  Smith  attempted 
to  enter  the  house  of  defendant,  and  also  that  at  that  time  he  feloni- 
ously intended  to  assault  or  kill  any  of  the  inmates.  This  is  not  the  law. 
It  is  not  the  state  of  the  mind  of  the  defendant  alone  which  the  jury  are 
to  consider,  but  of  the  deceased  as  well.  That  is  to  say,  what  the  de- 
fendant believed,  or  what  under  all  the  circumstances  he  might  have 
reasonable  cause  to  believe  to  be  the  intention  of  the  defendant. 

These  instructions  are  the  equivalent  of  a  denial  of  the  very  right  of 
self-defense  as  defined  and  pro\dded  by  our  statutes.  Sec.  1632,  Re- 
vised Statutes,  1908,  provides: 

"Justifiable  homicide  is  the  killing  of  a  human  being  in  necessary 
self-defense  or  in  the  defense  of  habitation,  property  or  person  against 
one  who  manifestly  intends  or  endeavors  by  \'iolence  or  surprise  to 
commit  a  known  felony,  such  as  murder,  rape,  robbery,  burglary  and 
the  like,  upon  either  person  or  property,  or  against  any  person  or  per- 
sons who  manifestly  intend  and  endeavor  in  a  ^^olent,  riotous  or  tumul- 
tuous manner  to  enter  the  habitation  of  another  for  the  purpose  of 
assaulting  or  offering  personal  \aolence  to  any  person,  dwelling  or  being 
therein." 

The  e\ddence  clearly  justified  the  submission  to  the  jury  of  the  ques- 
tion as  to  whether  or  not  the  deceased  was  a  person  who  manifestly 
intended  and  endeavored  in  a  xnolent,  riotous,  or  tumultuous  manner 
to  enter  the  habitation  of  the  defendant  for  the  purpose  of  assaulting 
or  offering  personal  violence  to  any  person  dwelling  or  being  therein. 


588  BAILEY    V.    PEOPLE.  [CHAP.  V. 

Instruction  No.  21,  without  qualification,  declares  in  substance  that 
a  husband  without  warrant  of  authority,  and  over  the  protest  of  the 
occupant,  has  a  right  to  enter  the  house  or  houses  of  any  person  whom- 
soever, for  the  purpose  of  talking  with,  and  procuring  his  wife,  and 
against  her  will,  to  leave  such  house  if  he  so  desires. 

This  is  not  now  and  never  was  the  law  in  this  country.  It  is  a 
repudiation  of  every  reasonable  conception  of  the  law  of  domicile  and 
the  right  of  habitation.  Neither  a  husband  nor  any  other  person 
has  such  right.  It  strikes  at  the  very  foundation  and  sanctity  of  home 
life.  It  gives  license  to  every  drunken  vagabond,  or  other  e^'il  person, 
to  invade  the  privacy  of  every  man's  home.  It  would  destroy  the 
moral,  constitutional,  statutory,  and  common  law  right  of  defense  of 
habitation. 

It  is  true  the  instruction  declares  the  entrance  must  be  in  a  lawful 
manner.  But  there  can  be  no  such  thing  as  lawful  entrance  under  such 
circumstances. 

But  the  part  of  the  paragraph  of  the  instruction  following  is  even 
more  shocking.  Here  the  jury  are  told  that  a  husband  may  over  the 
protest  of  the  occupant  of  the  house,  and  over  the  protest  of  the  wife 
of  the  husband  so  entering,  not  only  enter  any  man's  house,  but  has  a 
right  also  to  use  such  reasonable  force  and  persuasion  as  may  be  neces- 
sary to  cause  the  wife  to  leave  the  house  of  his  mother  and  come  back 
to  his  home  with  him,  and  that  no  person,  not  even  her  brother,  has  a 
right  to  interfere  with  him  in  the  exercise  of  such  reasonable  force  or 
persuasion. 

The  use  of  the  word  "force"  in  connection  with  the  word  persuasion 
can  refer  to  physical  force  only,  and  the  extent  of  this  force  is  thus 
limited  only  by  the  necessity  of  the  case,  in  order  to  so  secure  the  pos- 
session, control,  and  abduction  of  the  person  of  the  wife,  and  all  this  as 
against  her  will,  her  fear,  and  even  the  apparent  danger  of  her  life. 

In  other  words,  if  this  be  the  law,  whatever  may  be  the  circum- 
stances, the  defendant  was  absolutely  v/ithout  right  to  defend  his  home 
and  his  near  relatives  from  the  threatened  assaults  and  brutality  of  an 
infuriated  and  drunken  husband,  at  whose  will  the  home  is  to  be  made 
the  place  of  riot  and  the  occupants  to  suffer  mental  distress,  probable 
assault,  and  as  indicated  by  the  testimony  in  this  case,  possible  murder. 

Such  is  not  and  can  never  be  the  law  in  a  ciWlized  country. 

This  assertion  of  the  right  of  a  husband  to  control  the  acts  and  will 
of  his  wife  by  physical  force  cannot  be  tolerated. 

The  prejudicial  effect  on  the  defendant's  rights  by  these  instruc- 
tions is  too  palpable  to  require  comment. 

Counsel  for  defendant  in  their  very  excellent  brief  have  cited  many 
cases  bearing  upon  this  question.  Among  these  is  that  of  the  English 
case  of  Queen  v.  Jackson,  Div.  1 ,  1S91 .  This  was  a  case  where  a  husband 
undertook  to  restrain  the  liberty  of  his  wife  by  forcibly  keeping  her  in  his 
own  home  after  she  had  declined  to  further  live  with  him.    The  decision 


SECT.  III.]  BAILEY   V.   PEOPLE.  589 

of  the  court  in  that  case  may  be  epitomized  in  the  statement  of  Mr. 
Helmer  CoUins,  Q.  C,  as  follows: 

"  The  contention  of  the  husband  would  result  in  the  re-introduction 
into  society  of  private  war;  for  the  male  relations  of  a  wife  would 
naturally,  if  at  hand,  he  likely  to  resist  her  capture  by  the  husband.  The 
contention  for  the  husband  involves  wholly  untenable  propositions. 
First,  it  involves  that  the  husband  may  take  possession  of  the  wife's 
person  by  force,  though  no  process  of  law  could  give  him  such  posses- 
sion of  her.  There  never  was  any  process  of  law  for  seizing  and  hand- 
ing over  the  wife  to  the  husband."  .  .  . 

"  x\  husband  has  no  such  right  at  common  law  to  the  custody  of  his 
wife.  It  is  inconceivable  that  the  husband  should  be  entitled  to  do  by 
force  for  himself  that  which  the  law  cannot  enforce  in  his  favor." 

In  Fulgham  v.  State,  46  Ala.  143,  the  rule  is  stated  as  follows: 

"  But  in  person,  the  wife  is  entitled  to  the  same  protection  of  the  law 
that  the  husband  can  invoke  for  himself.  She  is  a  citizen  of  the  State, 
and  is  entitled,  in  person  and  in  property,  to  the  fullest  protection  of 
the  laws.  Her  sex  does  not  degrade  her  below  the  rank  of  the  highest 
in  the  Commonwealth." 

In  State  v.  Oliver,  70  N.  C.  44,  it  is  said: 

"  We  may  assume  that  the  old  doctrine  that  a  husband  had  a  right  to 
whip  his  wife,  provided  he  used  a  switch  no  larger  than  his  thumb,  is 
not  law  in  North  Carolina.  Indeed,  the  courts  have  ad^•anced  from 
that  barbarism  until  they  have  reached  the  position  that  the  husband 
has  no  right  to  chastise  his  wife  under  any  circumstances." 

Again,  in  Buckingham  v.  Buckingham,  81  Mich.  89,  the  same  doc- 
trine is  declared: 

"There  would  seem  to  be  no  legal  principle  which  would  prevent 
her  from  voluntarily  deserting  her  husband,  and  abandoning  her 
homestead.  She  is  in  no  sense  the  slave  of  her  husband,  and  is  so  far 
the  master  of  her  own  will  that  she  has  liberty  to  remain  with  her  hus- 
band, or  go  from  him,  as  she  pleases;  and  he  has  no  legal  remedy  to 
compel  her  to  return." 

In  State  v.  Connolly,  3  Ore.  69,  the  principle  is  stated  as  follows : 

"If  Mrs.  Hill,  the  wife  of  the  deceased,  having  reasonable  ground 
to  apprehend  personal  violence  at  the  hands  of  her  husband,  sought  a 
temporary  refuge  in  the  defendant's  house,  and  the  deceased,  being 
forbidden,  sought  to  enter,  then  either  the  defendant  or  his  wife  had  a 
right  to  use  all  necessary  force  to  prevent  him  from  entering." 

And  in  Commonwealth  v.  McAfee,  108  Mass.  459,  we  find  a  very  clear 
and  comprehensive  statement  of  the  rule: 

"It  may  be  stated,  however,  that  under  modern  legislation,  as  well 
as  judicial  opinions,  that  fiction  of  legal  unity  by  which  the  separate 
existence  of  the  wife  in  a  legal  sense  is  denied  is  exploded.  Her  person 
is  as  sacred  as  that  of  the  husband,  and  the  protection  afforded  by  law 
to  the  one  should  not  be  denied  to  the  other.    In  fact,  courts  of  equity 


590  COMMOXWEALTH    V.   DOUGHERTY.  [CHAP.  V. 

have  always  recognized  the  separate  existence  of  the  wife  in  reference 
to  her  sole  and  separate  estate,  and  to  say  that  a  court  of  law  will 
recognize  in  the  husband  the  power  to  compel  his  wife  to  obey  his 
wishes,  by  force  if  necessary,  is  a  relic  of  barbarism  that  has  no  place 
in  an  enlightened  civilization."  ^  .  .    • 

The  judgment  is  reversed,  and  the  case  remanded}' 


COMMONWEALTH  v.   DOUGHERTY. 

Supreme  Judicial  Court  of  Massachusetts,  1871. 

[Reported  107  Mass.  243.] 

Two  complaints  to  the  district  court  of  central  Berkshire,  for  as- 
sault and  battery  of  John  McCarthy;  the  first  offense  averred  to 
have  been  committed  in  a  church  building,  and  the  second  in  a  burial 
ground.  The  defendant  was  found  guilty  on  both,  and  appealed. 
At  the  trial  of  the  first  complaint,  in  the  Superior  Court,  on  the  appeal, 
before  Reed,  J.,  there  was  evidence  of  these  facts: 

The  defendant  was  sexton  of  the  Roman  Cathohc  church  building 
in  Pittsfield,  and  in  that  capacity  had  charge  of  the  building  and  of  the 
conduct  of  funerals  in  it.  He  was  also  an  undertaker.  It  was  the  rule 
concerning  funerals  in  the  building,  that  the  priest  or  the  sexton  should 
be  informed  of  the  death,  and  of  the  desire  of  the  friends  of  the  deceased 
that  funeral  services  should  be  performed  there;  upon  receiving  such 
notice,  either  the  priest  or  the  sexton  would  fix  a  time  for  such  services, 
to  avoid  interference  with  the  other  exercises  of  the  church;  and  it  was 
the  sexton's  duty  to  take  charge  of  the  funeral  procession,  when  it 
reached  the  door  of  the  building,  and  to  precede  the  bearers  of  the 
corpse  up  the  aisle,  superintend  the  deposit  of  the  bier  in  the  place 
provaded  for  it,  seat  the  mourners,  and  then,  if  the  priest  was  not 
present,  call  him. 

On  Sunday,  May  17,  1870,  at  the  close  of  a  religious  ser\'ice  in  the 
building,  and  after  the  congregation  had  been  dismissed,  but  while 
some  of  them  were  lingering  at  prayer  within  the  building,  John  Mc- 
Carthy, an  undertaker  who  had  recently  set  up  in  business  in 
Pittsfield,  came  to  the  building  in  charge  of  a  funeral  of  which  no 
previous  notice  had  been  given,  and  attempted  to  enter  and  perform 
the  duties  of  the  sexton  in  regard  to  it.  ITpon  McCarthy's  arrival  at 
the  vestibule,  the  defendant,  who  was  seated  at  a  desk  within  the  door, 
forbade  him  to  proceed  with  the  funeral  in  the  building.     But  Mc- 

'  Part  of  the  opinion  is  omitted.  —  Ed. 

2  See  State  v.  Sinclair,  250  Mo.  278,  157  S.  W.  339.  —  Ed. 


SECT.  III.]  COMMONWEALTH   V.    DOUGHERTY.  591 

Carthy  persisted  in  his  attempt,  marched  up  the  aisle  with  his  proces- 
sion, and  was  directing  one  Tim  Powers  where  to  put  the  bier,  when 
the  defendant  "came  down  the  aisle,  and  told  him  to  go  out  of  the 
church,  and  forcibly  removed  him,  but  without  more  force  than  was 
necessary  to  eject  him  from  the  building." 

Upon  these  facts  the  defendant  requested  a  ruling  that  he  was  en- 
titled to  an  acquittal,  which  the  judge  refused,  whereupon  by  consent 
of  the  defendant  a  verdict  of  guilty  was  returned  and  the  case  reported 
for  the  revision  of  this  court. 

Morton,  J.  It  appeared  at  the  trial,  that  the  defendant  was  the 
sexton  and  person  in  charge  of  the  church,  and  that  it  was  his  duty  to 
take  charge  of  and  conduct  funerals  at  the  church.  The  complainant 
McCarthy  had  no  right  to  insist  upon  conducting  a  funeral  there  in 
violation  of  the  rules  prescribed  by  the  authorities  of  the  church  to 
maintain  order  and  prevent  interference  with  other  religious  exercises. 
The  facts  show  that  he  did  so,  and  that,  upon  being  requested  to 
desist  and  leave  the  church,  he  refused,  and  persisted  in  his  unauthor- 
ized intrusion.  We  think  the  defendant,  being  in  charge  of  the  church, 
upon  such  refusal,  had  a  right  to  remove  him ;  and  as  the  facts  find  that 
in  so  doing  he  used  no  more  force  than  was  necessary,  he  was  not  guilty 
of  an  assault  and  battery.  The  jury  should  have  been  instructed,  as 
requested  by  the  defendant,  that  upon  the  facts  shown  at  the  trial  he 
was  entitled  to  an  acquittal. 

Verdict  set  aside. 

At  the  trial  of  the  second  complaint,  in  the  Superior  Court,  also 
before  Reed,  J.,  the  following  facts  appeared: 

The  fee  of  the  Roman  Catholic  burial  ground  in  Pittsfield  was  in 
Edward  H.  Purcell,  the  pastor  of  the  church  of  St.  Joseph  in  Pitts- 
field;  and  he  had  established  certain  rules  for  its  use,  the  tenth  and 
eleventh  of  which  were  as  follows : 

"  Tenth.  The  conduct  and  charge  of  all  funeral  processions  and 
gatherings  of  persons  in  and  upon  the  grounds  of  said  cemetery  shall 
be  in  the  person  appointed  for  that  purpose  by  the  pastor  of  the  church 
of  St.  Joseph  in  Pittsfield,  and  strict  obedience  to  his  requirements  is 
demanded  and  will  be  enforced. 

"  Eleventh.  Undertakers,  and  all  other  persons  having  charge  of  a 
funeral  or  burial,  before  entering  upon  the  cemetery  grounds,  will 
notify  the  person  in  charge  of  the  cemetery  of  the  time  such  burial 
will  occur.  In  the  cemetery  all  arrangements  therefor  will  be  made, 
and  the  charge  of  such  funeral  received  at  the  entrance  of  said  cemetery, 
and  no  undertaker  or  other  person  than  the  pastor  or  his  appointees 
will  be  permitted  to  officiate  in  any  way  or  matter  upon  the  grounds." 

The  defendant  was  the  person  appointed  by  leather  Purcell  under 
the  tenth  rule,  and  had  charge  of  the  burial  ground. 

Licenses  for  lots  were  granted  b\'  Father  Purcell  in  a  form  certifying 


592  HIGGINS    V.   MINAGHAN.  [CHAP.  V. 

that  the  licensee  was  entitled  to  the  use  of  one  burial  lot  of  specified 
dimensions,  subject  to  the  rules  for  the  use  of  the  burial  ground,  and 
on  condition  that  persons  dying  drunk  or  unbaptized,  or  otherwise  op- 
posed to  the  Catholic  Church  in  the  opinion  of  the  Roman  Catholic 
bishop  of  Boston,  should  not  be  entitled  to  observance  of  the  license. 

At  the  funeral  (described  in  the  first  case)  which  the  undertaker 
McCarthy  was  conducting,  he  "entered  the  burial  ground  with  the 
corpse,  under  this  usual  license,  and  there  conducted  the  funeral  cere- 
monies, and,  as  is  usual  on  such  occasions  with  Roman  Catholics,  gave 
thanks  and  made  prayers  at  the  close."  As  McCarthy  was  rising  from 
his  knees  and  putting  on  his  hat,  the  defendant,  "  coming  up  to  object 
to  his  presence  and  actions  in  conducting  the  funeral  on  the  cemetery 
grounds,  struck  him  upon  the  shoulder,  and  objecting  that  he  was  not 
permitted  to  go  there  as  undertaker  with  a  funeral,  and  that  Father 
Purcell  had  prcN^iously  thereto  forbidden  him  to  take  charge  of  a  funeral 
at  the  cemetery,  refused  to  permit  him  to  officiate  thereat  in  the 
cemetery." 

Upon  these  facts  (as  in  the  first  case)  the  defendant  requested,  and 
the  judge  refused,  a  ruling  that  the  defendant  was  entitled  to  an  ac- 
quittal; whereupon  by  consent  of  the  defendant  a  verdict  of  guilty 
was  returned  and  the  case  reported  to  this  court. 

Morton,  J.  We  cannot  say,  as  matter  of  law,  that  the  verdict  of 
the  jury  was  erroneous.  It  appeared  at  the  trial,  that,  after  McCarthy 
had  concluded  the  funeral  services,  the  defendant  struck  him  on  the 
shoulder.  It  does  not  appear  that  this  was  for  the  purpose  of  removing 
him  from  the  cemetery.  If  it  be  admitted  that  the  defendant  had  the 
right  to  remove  McCarthy,  it  does  not  follow  that  this  assault  was 
justifiable.  It  was  for  the  jury  to  decide  whether  the  force  used  by  the 
defendant  was  used  for  the  purpose  of  removing  him,  and  whether  it 
was  reasonable  in  kind  and  degree.  Both  of  these  questions  were 
within  the  province  of  the  jury  to  determine,  and  we  cannot  revise 
their  finding  thereon. 

Judgment  on  the  verdict. 


HIGGINS  V.   MINAGHAN.    • 

Supreme  Court  of  Wiscoxsin,  1891. 

[Reported  78  Wis.  602.] 

Cole,  C.  J.^  A  number  of  instructions  were  asked  on  the  part  of 
the  defendant,  some  of  which  were  covered  by  the  general  charge;   and 

1  Part  of  the  opinion  is  omittefl.  —  Ed. 


II 


SECT.  III.]  HIGGINS    V.   MINAGHAN.  593 

some  were  refused  which  should  have  been  given.  The  instructions 
and  charge  are  too  lengthy  to  be  quoted  verbatim,  nor  is  it  necessary, 
to  make  our  remarks  upon  them  intelligil)le.  The  really  controverted 
question  in  the  case  was  whether,  under  the  circumstances,  the  de- 
fendant was  justified  in  shooting  the  plaintiff  as  he  did.  The  trial 
court,  in  considering  the  question  whether  the  shooting  was  excusable 
or  justifiable,  said: 

"The  defendant,  as  he  had  a  lawful  right  to  do,  on  the  14th  day  of 
June  married  a  second  wife  and  took  her  to  his  home  to  live.  On  the 
night  of  June  18,  1887,  the  plaintiff  and  others  —  men  and  boys  — 
proceeded  to  the  defendant's  house,  and  engaged  in  what  is  designated 
as  a  charivari,  the  nature  and  character  of  which  is  shown  by  the  evi- 
dence. The  same  thing  was  repeated  on  the  nights  of  the  22d  and 
2oth  of  the  same  month.  It  was  continued  on  the  last  night  until  the 
plaintiff  was  shot,  when  the  crowd  dispersed.  What  was  done  on  each 
night  is  for  you  to  ascertain  and  consider.  The  plaintiff  was  present 
,on  the  18th  and  25th  of  June,  as  an  actual  participant,  or  aiding  and 
encouraging  the  others,  so  that  he  is  responsible  for  the  acts,  lan- 
guage, and  conduct  of  each  and  every  one  constituting  the  charivari 
party,  the  same  as  if  done  by  himself.  He  knew  what  had  been  done 
on  the  night  of  the  22d,  before  the  commencement  of  the  proceedings 
and  disturbance  on  the  25th.  The  defendant,  at  these  times,  was  in 
the  peaceable  pursuit  of  his  own  business,  at  home  with  his  family,  and 
entitled  to  enjoy  domestic  peace  and  tranquillity,  without  disturbance 
or  molestation  from  the  plaintiff  or  any  one  else.  These  three  gather- 
ings by  the  plaintiff  and  others  were  composed  of  men  and  boys  from 
the  defendant's  neighborhood,  but  whether  he  knew  who  they  were  at 
these  times  is,  of  course,  a  question  for  you  to  determine.  The  chari- 
vari parties  consisting  of  the  crowd  in  front  of  or  upon  the  defendant's 
premises  constituted  an  unlawful  assembly;  and  by  their  transactions, 
conduct,  and  behavior  became  what  is  known  in  the  law  as  a  'riot,' 
tending  to  the  disturbance  of  the  peace  and  the  annoyance,  if  not  the 
terror,  of  the  defendant  and  others  in  the  vicinity;  they  were  trespassers 
in  the  highway.  Where  an  unlawful  assembly  and  riot,  like  the  one  in 
question,  offers  and  threatens  violence  to  persons  or  property,  it  may 
and  ought  to  be  repelled  with  suitable  and  necessary  force;  but,  where 
no  violence  is  offered  or  threatened  to  person  or  property,  no  one  is 
justified  in  unnecessarily  or  wantonly  killing  or  wounding  a  person 
engaged  in  a  charivari.  The  law  pro^^des  a  punishment  for  such  un- 
lawful acts.  Persons  thus  engaged  are  not  necessarily  outlaws  beyond 
the  protection  of  the  law,  who  may  be  slain  or  wounded  without 
cause  by  any  person  not  in  any  actual  or  apparent  danger  from  their 
acts.  To  enable  you  to  determine  whether  violence  was  offered,  danger 
to  person  or  property  was  threatened  or  contemplated,  the  numbers  in 
these  unlawful  assemblies,  and  their  acts  and  transactions,  proceed- 
ings, and  conduct  on  the  three  nights  in  question  may  be  considered 


594  HIGGINS   V.   MINAGHAN.  [CHAP.  V. 

on  the  question  of  whether  the  defendant  was  justified  in  doing  what  he 
did,  if  he  shot  the  plaintiff  in  the  leg.  .  .  . 

"  In  case  you  are  satisfied  from  the  e\'idence  that  the  defendant  shot 
the  plaintiff  in  the  leg,  your  next  duty  will  be  to  determine  whether 
such  shooting  was  excusable  or  justifiable.  Every  one  has  the  right  to 
protect  himself  and  his  family  from  danger  to  life  or  limb,  and  his 
home  from  invasion  by  the  felonious  acts  of  others.  He  may  employ 
suitable  and  appropriate  means  and  methods  to  prevent  or  avoid  the 
threatened  danger.  Before  force  can  be  resorted  to  there  must  be  real 
or  apparent  danger,  and  an  apparent  necessity  of  using  force  to  avoid 
or  prevent  an  injury.  One  instance  is  where  one  person  attempts  a 
battery  of  another,  in  which  case  the  latter  is  not  obliged  to  submit 
until  an  officer  can  be  found  or  a  suit  commenced,  but  he  may  oppose 
violence  to  violence,  and  the  limit  to  this  pri\'ilege  is  only  this:  that 
he  must  not  employ  a  degree  of  force  not  called  for  in  self-defense;  he 
must  not  inflict  serious  injuries  in  repelling  slight  injuries,  nor  take 
life,  unless  his  life  or  limb  is  in  danger.  Where  he  exceeds  the  limit  of 
necessary  protection  and  employs  excessive  force,  he  becomes  a  tres- 
passer himself,  and  his  assailant  may  recover  damages  from  him  for  re- 
pelling th^  assault  with  a  violence  not  called  for.  As  mere  words  never 
constitute  an  assault,  neither  will  they  justify  the  employment  of  force 
in  protection  against  them,  however  gross,  obscene,  or  abusive  they 
may  be.  There  are,  probably,  exceptions  to  this  general  statement,  in 
words  grossly  insulting  to  females  —  at  least,  where  one  would  be  ex- 
cused, where  grossly  vulgar  and  insulting  langug^ge  was  employed  in  the 
presence  of  his  family,  if  he  were  promptly  to  put  a  stop  to  it  by  force. 
Such  force  as  one  may  employ  in  his  own  defense  he  may  also  employ 
in  the  defense  of  his  wife,  his  child,  or  any  member  of  his  family;  but 
to  revenge  the  wrongs  of  himself  or  his  family  is  no  part  of  his  legal 
right,  and  where  the  danger  is  repelled,  or  there  is  no  real  or  apparent 
danger,  justification  for  the  further  use  of  violence  is  at  an  end.  The 
force  or  means  to  be  employed  in  self-defense  of  person  or  family  must 
be  such  only  as  are  reasonably  necessary  to  repel  or  prevent  the  threat- 
ened injury.  .  .  . 

"  If  the  noise,  disturbance,  and  disorderly  acts  of  the  charivari  party 
so  affected  the  wife  and  children  of  the  defendant  that  he  had  reason- 
able grountls  to  apprehend  that  either  of  them  was  likely  to  die  or  to 
be  seriously  injured  in  body,  mind,  or  health,  if  such  acts  were  contin- 
ued, and  reasonable  cause  to  belie\'e  that  such  injury  might  result, 
then  the  defendant  had  the  right  to  use  the  necessary  force  to  avert 
the  apprehended  danger,  the  same  as  though  an  actual  attack  had  been 
made  on  their  persons;  but  if  the  sole  and  only  danger  to  be  appre- 
hended was  the  injury  to  his  wife  and  children  from  fright  or  terror, 
then  if  the  defendant  with  reasonable  safety  to  himself  could  have 
approached  near  enough  to  have  informed  the  charivari  party  of  this 
fact,  he  should  have  done  so,  and  given  them  an  opportunity  t^  desist,  - 


SECT,  in.]  HIGGINS   V.    MINAGHAN.  595 

before  firing  into  the  crowd;  he  should  have  used  all  reasonable  and 
practicable  efforts  which  he  could  use  without  exposing  himself  to 
danger  to  let  th^m  know  the  situation  and  danger  to  his  family  from 
their  acts ;  but  if  the  acts  and  conduct  of  the  charivari  party  were  of  such 
a  character  that  it  would  have  been  impracticable  or  dangerous  to  him- 
self or  his  limb  to  have  gone  near  enough  to  have  given  them  this  infor- 
mation, then  he  would  be  excused  from  so  doing.  If  alone,  and,  in  addi- 
tion to  danger  to  his  wife  and  child  from  fright  or  terror,  there  was 
imminent  danger  of  a  felonious  attack  on  his  house  or  on  its  inmates  or 
himself,  no  notice  to  the  charivari  party  of  such  danger  to  his  wife  cr 
child  would  be  necessary;  but  it  would  be  for  you  to  find  whether  he 
is  excusable  or  justifiable  in  firing,  at  the  time  and  manner  he  did,  under 
all  the  circumstances  of  the  case.  The  shooting  or  killing  of  another  is 
justifiable  when  committed  by  any  person  in  either  of  the  following 
cases." 

Now,  in  respect  to  this  charge,  we  remark  (1)  that  what  is  said  in  it 
about  justifiable  homicide  was  calculated  to  mislead  the  jury  from  the 
real  issue.  The  defendant  did  not  kill  any  one,  and  there  was  no  occa- 
sion to  define  justifiable  homicide,  for  no  such  question  was  in  the  case. 

(2)  We  do  not  tliink  the  defendant  is  bound  to  notify  the  chari- 
vari party  that  their  shooting,  noise,  and  tumult  were  causing  terror 
and  fright  to  his  wife  and  cliildren,  and  were  seriously  injuring  them  in 
mind,  body,  and  health. '  This  was  the  third  night  these  persons  had 
been  engaged  in  these  unlawful  and  criminal  proceedings.  On  the 
first  night  they  came  the  defendant  had  warned  them  away,  and  directed 
them  to  desist.  The  rioters  themselves  knew,  or  should  have  known, 
that  their  acts  and  conduct  about  the  house,  in  the  night,  were  well 
calculated  to  produce  terror  and  fright,  and  injuriously  affect  the  de- 
fendant's family.  This  was  the  direct,  necessary,  and  almost  inevitable 
consequence  of  their  acts.  If  the  defendant  had  again  requested  them 
to  desist  and  go  away,  "had  told  them  they  were  causing  serious  bodily 
harm  to  his  wife  and  children,  his  notice  and  warning  would  probably 
have  been  received  with  derision,  insulting  remarks,  and  vile  abuse, 
as  they  had  been  on  previous  occasions.  So  we  think  it  was  error  to 
charge  that  the  defendant  was  bound  to  inform  the  charivari  party  of 
the  fact  that  their  riotous  conduct  was  endangering  the  life  of  his  wife 
and  children,  before  taking  effectual  means,  by  shooting  or  otherwise, 
to  drive  them  away.  The  circuit  judge  evidently  held  that  the  de- 
fendant had  no  right  to  fire  into  the  body  of  rioters  without  notice  and 
without  having  commanded  them  to  disperse;  but  upon  the  undis- 
puted facts  of  the  case  the  law  imposed  upon  him  no  such  duty. 

(3)  We  think  the  charge  is  faulty  because  it  did  not  point  out  to  the 
jury  the  essential  difference  between  an  assault  by  one  person  and  by  a 
body  of  rioters.  iVn  assault  in  the  latter  case  always  inspires  more 
terror  and  is  attended  with  greater  danger  than  in  the  former;  for,  as 
defendant's  counsel  says,  when  a  number  of  men  combine  to  do  an  un- 


596  HIGGINS   V.    MINAGHAN.  [CHAP.  V. 

lawful  act  a  kind  of  emulation  is  excited  which  leads  one  after  another  to 
go  to  greater  and  greater  excesses  and  to  resort  to  more  flagrant  acts, 
so  that  a  person  assaulted  by  a  mob  in  that  way  is  necessarily,  from 
the  nature  of  the  case,  subject  to  greater  terror  and  apprehension  than 
when  the  assault  is  made  by  an  individual,  and  the  assaulted  party 
may  act  with  more  promptness  and  resort  to  more  forcible  means  to 
protect  himself  and  suppress  the  riot  than  in  the  latter  case.  Here  the 
rioters  were  firing  guns,  blowing  horns,  drumming  on  pans,  and  making 
all  kinds  of  hideous  noises  (76  Wis.  301),  and  kept  up  this  tumultuous 
uproar  for  hours,  until  his  wife  and  youngest  daughter  were  nearly 
frig-htened  to  death.  The  defendant  could  not  tell  when  thev  would 
attack  his  dwelling-house,  or  shoot  him,  or  personally  assault  him; 
and  in  the  excitement  and  confusion  the  law  would  justify  or  excuse 
him  in  the  use  of  firearms  for  the  safety  of  himself  and  family,  when 
such  means  might  not  be  resorted  to  in  the  case  of  an  assault  by  an 
individual. 

This  idea,  or  difference  between  an  assault  by  one  and  by  a  large 
number,  is  embraced  in  the  eleventh  and  twelfth  and  some  of  the  other 
instructions  asked  by  the  defendant,  and  the  point  should  have  been 
clearly  and  emphatically  impressed  upon  the  minds  of  the  jury,  for  the 
difference  is  great,  and  common  experience  teaches  that  the  danger  to 
life  and  property  is  immeasurably  greater  in  one  case  than  in  the  other. 
The  trial  court  should  have  charged  in  the  language  of  the  eleventh 
request,  or  in  some  equivalent  language,  that  "  a  riot  is  regarde'd  in  law, 
always,  as  a  dangerous  occurrence,  because  when  rioters  have  convened 
in  a  tumultuous  and  disorderly  manner,  and  have  actually  begun  to 
accomplish  an  unlawful  act,  to  the  terror  or  disturbance  of  others,  the 
prompting  of  one  rioter  is  contagion  to  another,  and  it  is  impossible  to 
conjecture  or  ascertain  beforehand  to  what  extremities  of  lawlessness  or 
crime  the  excitement  and  confusion  may  lead.  ...  A  private  person, 
who  cannot  otherwise  suppress  them  or  defend  himself  from  them, 
may  justify  or  excuse  the  use  of  firearms  or  other  deadly  weapons,  be- 
cause it  is  both  a  right  and  a  duty  to  protect  one's  self  and  family,  and 
to  aid  in  preser\ang  the  peace." 

We  see  no  objection  to  the  charge  where  the  jury  were  directed :  "  If 
a  person  is  assaulted  in  such  a  way  as  to  induce  in  him  a  reasonable 
belief  of  danger  of  losing  his  life  or  of  suffering  great  bodily  harm,  he 
will  be  justified  in  defending  himself,  although  the  danger  be  not  real, 
only  apparent.  Such  a  person  will  not  be  held  responsible  civilly  or 
criminally  if  he  acts  in  self-defense,  from  real  and  honest  con\nctions 
induced  by  reasonable  evidence,  although  he  may  be  mistaken  as  to  the 
extent  of  the  actual  danger.  A  person  need  not  be  in  actual  imminent 
peril  of  his  life  or  of  great  l)odily  harm  before  he  may  shoot  his  assail- 
ant; it  is  sufficient  if  in  good  faith  he  has  reasonable  ground  from  the 
facts,  as  they  appear  to  him  at  the  time,  to  apprehend  a  design  to 
commit  a  felony,  or  to  do  some  great  personal  injury,  and  reasonable 


SECT.  III.J  COPE    V.    SHARPE.  597 

cause  for  believing  that  there  is  imminent  danger  of  such  design  being 
accompHshed." 

We  do  not  deem  it  necessary  to  comment  further  on  the  charge. 
We  think  the  case  was  not  submitted  to  the  jury  upon  proper  instruc 
tions,  and  that  there  must  be  a  new  trial  for  that  reason. 

By  the  Court.  —  The  judgment  of  the  circuit  court  is  reversed,  and 
a  new  trial  ordered. 


COPE  V.  SHARPE. 
Court  of  Appeal,  1911. 
[Reported  (1912)  1  A'.  B.  496.] 

Appeal  of  the  defendant  from  the  decision  of  a  Divisional  Court 
(Phillimore,  Hamilton,  and  Scrutton,  JJ.)  upon  an  appeal  from  the 
county  court  of  Surrey  holden  at  Aldershot,  reported  [1911]  2  K.  B.  837. 

The  action  was  for  trespass.  The  plaintiff,  who  was  the  owner  of 
land,  by  an  agreement  dated  February  1,  1909,  let  the  shooting  rights 
over  the  land  to  one  Chase  for  a  term  of  two  years. 

The  defendant  was  bailiff  and  head  gamekeeper  to  Chase. 

During  April  and  May,  1909,  a  number  of  heath  fires  broke  out  on 
the  land  of  the  plaintiff.  On  April  21,  1909,  a  serious  fire  broke  out  on 
the  south  side  of  a  part  of  the  shooting  known  as  the  Welsh  Drive, 
where  there  was  a  covert  affording  shelter  to  nesting  pheasants.  There 
was  a  conflict  of  evidence  as  to  the  direction  of  the  wind. 

Some  fifty  men  were  engaged  in  beating  out  the  fire.  While  they 
were  thus  occupied  the  defendant  came  along  the  Welsh  Drive  and  set 
fire  to  strips  or  patches  of  heather  at  some  considerable  distance  from 
the  main  fire  and  between  it  and  the  Welsh  Drive.  On  being  asked  why 
he  interfered  he  said  the  men  did  not  know  how  to  deal  with  a  fire. 
Shortly  afterwards  the  men  succeeded  in  extinguishing  the  fire. 

The  plaintiff  brought  an  action  in  the"  county  court  of  Hampshire 
holden  at  Basingstoke.  Judgment  was  given  in  that  action  for  the 
plaintiff  for  nominal  damages  and  an  injunction.  The  defendant  ap- 
pealed ;  and  the  Divisional  Court,  being  in  some  doubt  as  to  whether 
the  county  court  judge  had  directed  his  mind  to  the  question  whether 
the  act  of  the  defendant  was  necessary  for  the  protection  of  his  master's 
game,  ordered  a  new  trial  to  be  had  in  the  county  court  of  Surrey 
holden  at  Aldershot:  see  the  report  of  Cope  v.  Sharpe,  [1910]  1  K.  B. 
168.  It  was  subsequently  ordered  that  the  trial  should  take  place  be- 
fore a  jury:  see  Rex  v.  Surrey  County  Court  Judge,  [1910]  2  K.  B.  410. 


598  COPE   V.    SHARPE.  [i  HAP.  V. 

The  second  trial  proved  abortive,  as  the  jury  could  not  agree  upon  a 
verdict.  The  case  was  thereupon  heard  for  the  third  time.  The  county 
court  judge  left  the  following  questions  to  the  jury: 

(1)  Was  the  method  adopted  by  the  defendant  in  fact  necessary  for 
the  protection  of  his  master's  property? 

(2)  If  not,  was  it  reasonably  necessary  in  the  circumstances? 

The  jury  answered  the  first  question  in  the  negative,  and  the  second 
in  the  affirmative.  An  argument  ensued  as  to  which  question  was  as  a 
matter  of  law  the  proper  question  to  be  left.  The  county  court  judge 
held  that  the  second  was  the  proper  question.  He  therefore  entered 
judgment  for  the  defendant. 

The  plaintiff  appealed  to  a  Divisional  Court,  who  entered  judgment 
for  the  plaintiff,  [1911]  2  K.  B.  837. 

The  defendant  appealed. 

Kennedy,  L.  J.  I  have  come  to  the  conclusion  that  this  appeal 
ought  to  be  allowed  and  the  judgment  of  the  learned  judge  of  the 
county  court  restored.  ^ 

With  parts  of  the  judgments  pronounced  in  the  Di\'isional  Court  I 
agree.  I  agree  in  holding  that  an  interference  with  the  property  or 
the  person  of  another,  which  otherwise  would  certainly  constitute  an 
actionable  trespass,  cannot  be  justified  by  mere  proof  on  the  part  of 
the  alleged  trespasser  of  his  good  intention  and  of  his  belief  in  the  ex- 
istence of  a  danger  which  he  sought  by  his  act  of  interference  to  avert, 
but  which  in  fact  did  not  exist  at  all.  The  case  cited  by  Phillimore,  J., 
from  the  Year  Book,  Hil.  22  Edw.  4,  f.  45,  pi.  9,  10,  as  to  the  imprison- 
ment of  a  supposed  lunatic,  supports  and  illustrates  this  ^^ew.  The 
person  imprisoned  was  not  in  fact  a  lunatic;  therefore  there  was  not 
any  basis  of  danger  to  justify  his  imprisonment.  There  are,  however, 
two  points  upon  which  I  respectfully  differ  from  the  Di\^sional  Court 
in  the  present  ca.se.  The  first  of  these  is  that  the  learned  judges  in  that 
Court  have  decided  against  the  defendant  upon  the  ground  that,  ac- 
cording to  the  first  of  the  two  findings  of  the  jury,  he  has  failed  to  prove 
that  his  interference  with  the  plaintiff's  property  —  the  patches  of 
heather  which  the  defendant  burned  —  was  actually  necessary  in  order 
to  save  the  covert  in  which  were  the  nesting  pheasants  from  being  in- 
volved in  the  conflagration.  They  have  held  that  the  second  finding 
of  the  jury  that  the  course  which  the  defendant  pursued  in  order  to 
save  the  nesting  pheasants  was  "reasonably  necessary"  afforded  no 
defense.  The  principle  of  such  a  decision,  as  it  appears  to  me,  can 
only  be  that,  although  at  the  moment  of  the  interference  of  an  alleged 
trespasser  with  the  property  of  another  the  danger  to  life  or  property 
which  it  was  sought  to  avert  by  that  interference  was  a  real  and  ex- 
istent danger,  and  a  danger  so  imminent  that  any  reasonable  man 
would  in  the  circumstances  treat  it  as  one  in  which  it  was  necessary, 
in  order  to  save  life  or  property  endangered,  to  interfere  as  the  alleged 
trespasser  has  done,  he  must  be  held,  nevertheless,  guilty  of  a  trespass, 


SECT.  III.]  COPE    V.    SHARPE.  599 

unless  he  can  also  prove  that,  but  for  that  interference,  the  person  or  the 
property  which  he  sought  to  protect  must  —  for  nothing  less  than  this 
is  the  meaning  of  the  expression  "actually  necessary"  —  have  suffered 
harm  or  loss. 

I  do  not  think  that  this  is  the  law.  The  justification  of  such  inter- 
ference depends,  in  my  judgment,  upon  the  state  of  things  at  the 
moment  at  which  the  interference  takes  place,  and  not  upon  the 
inference  as  to  necessity  to  be  drawn  from  the  event.  A  house  is  on 
fire;  the  fire,  as  the  wind  is  blowing,  creates  an  imminent  danger  for 
the  occupant  of  the  adjoining  premises,  and  he,  to  avert  that  danger, 
pours  water  into  the  burning  house.  Let  us  suppose  that  the  wind 
suddenly  changes,  or  that  unforeseen  assistance  arrives,  so  that  in  the 
event  it  is  plain  that  the  discharge  of  water  into  the  burning  house  was 
not  actually  necessary  for  the  preservation  of  the  adjoining  premises; 
can  it  rightly  be  contended  that  if,  upon  the  trial  of  an  action  brought 
by  the  owner  of  the  burning  house  to  recover  compensation  for  prop- 
erty which  was  damaged  by  the  water,  it  was  proved  to  the  satisfac- 
tion of  the  jury  that  the  commission  of  the  act  complained  of  was,  at 
the  time  when  such  damage  was  done,  "reasonably  necessary"  (in  the 
words  of  the  second  finding  of  the  jury  in  the  present  case)  in  order  to 
save  life  or  property  in  the  premises  then  endangered  by  their  prox- 
imity to  the  conflagration,  the  plaintiff  would  nevertheless  succeed, 
because  it  was  proved  by  him  at  the  trial  that,  by  reason  of  the  subse- 
quent change  of  wind  or  by  reason  of  the  arrival  of  upforeseen  assist- 
ance, his  neighbor's  precaution  was,  in  the  event,  actually  unnecessary? 

Or,  take  the  case  of  the  jettison  of  cargo  at  sea.  Could  it  properly 
be  contended  that  the  legal  justification  of  the  jettison  depends  upon 
proof  that  in  fact,  as  things  have  happened,  it  was  actually  necessary 
for  the  safety  of  the  adventure,  and  that  a  jettison  made  reasonably 
in  order  to  preserve  the  adventure  from  imminent  peril  of  destruc- 
tion in  a  gale  must  be  held  to  be  unjustifiable,  if  the  owner  of  the  goods 
jettisoned  can  prove  that,  after  the  jettison  took  place,  a  sudden  fall 
of  the  wind  or  a  sudden  change  in  its  direction  removed  the  peril  and 
that,  therefore,  the  adventure  would  in  fact  have  been  preserved  with- 
out the  jettison?  In  my  humble  judgment,  this  question  ought  to  be 
answered  in  the  negative;  and,  if  authority  is  sought  upon  the  point, 
I  think  it  sufficiently  appears  in  the  judgment  of  Brett,  L.  J.,  in  Wliite- 
cross  Wire  Co.  v.  Sa\'ill,  8  Q.  B.  D.  653,  and  in  the  statement  in  2 
Phillips  on  Insurance,  3d  ed.,  ch.  15,  s.  1,  par.  1270  (cited  in  the  argu- 
ment of  the  last  mentioned  case),  that,  "in  order  to  constitute  a  basis 
for  a  contribution  for  an  expense  or  sacrifice"  —  or,  in  other  words,  in 
order  to  justify  the  destruction  or  damage  of  property  at  sea  for  the 
safety  of  the  adventure — "it  must  be  occasioned  by  an  apparently  im- 
minent peril."  I  do  not  think  that  either  Mouse's  Case,  12  Rep.  63,  or 
Maleverer  v.  Spinke,  Dyer,  35  b.,  or  Dewey  r.  White,  Moo.  &  M.  56, 
cited  by  Pliillimore,  J.,  furnish  any  authority  for  an  opposite  view. 


600  COPE    V.    SHARPE.  [chap.  V. 

On  the  contrary,  it  appears  to  me  that  the  judgment  of  Best,  C.  J., 
in  Dewey  v.  White,  Moo.  &  M.  56,  in  comparing  the  justification 
of  the  damage  caused  by  puUing  down  a  dangerous  structure  with  the 
justification  in  the  case  of  maritime  jettison,  tends  to  support  the 
contention  of  the  appellant.  These  cases  do  show  that  the  law  re- 
quires, in  order  to  make  good  a  defense  in  an  action  of  trespass  for 
interference  with  the  property  of  another  for  the  purpose  of  averting 
an  imminent  danger,  that  the  defendant  shall  prove  that  such  a  danger 
existed  actually,  and  not  merely  in  the  belief  of  the  defendant.  They 
do  not  show  that,  even  if  the  existence  of  such  an  imminent  danger  as 
to  vindicate  the  reasonableness  of  the  interference  in  order  to  preserve 
property  exposed  to  the  danger  is  proved,  the  defense  must  still  fail 
unless  it  is  also  proved  that  the  interference  was,  in  the  circumstances 
as  they  eventually  happened,  actually  necessary,  that  is  to  say,  that  the 
property  sought  to  be  preserved  must,  but  for  the  interference  com- 
plained of,  have  suffered  injury  or  destruction.  Nor  is  there  anything 
in  my  own  judgment  in  Carter  v.  Thomas,  [1893]  1  Q.  B.  673,  to  which 
I  refer  only  because  it  is  mentioned  by  Phillimore,  J.,  that  conflicts 
with  the  views  which  I  have  just  expressed.  What  I  was  there  at  pains 
to  point  out  was  that  in  the  case  of  a  mere  volunteer  it  would  require 
very  special  circumstances  to  justify,  on  the  ground  of  reasonable  neces- 
sity, his  forcible  entry  into  the  premises  of  another  against  the  M^ll  of 
the  owner,  in  order  to  help  in  extinguishing  a  fire.  In  the  present  case, 
the  defendant  was  not  a  mere  volunteer,  and  therefore  no  such  question 
arises  for  consideration.  He  was  the  gamekeeper  in  the  service  of  Mr. 
Chase,  to  whom  the  plaintiff,  the  landowner,  had  let  the  sporting  rights 
over  liis  estate,  including  the  land  on  which  the  fb-e  occurred  and  on 
which  were  the  heather  patches  fired  by  the  defendant  and  the  covert 
sheltering  the  nesting  birds  which  the  defendant  sought  to  protect 
from  the  fire  by  destroying  some  patches  of  the  heather  in  advance  of 
the  flames.  The  defendant's  fulfillment  of  a  duty  to  his  master,  as 
Hamilton,  J.,  points  out,  could  not  affect  any  right  of  the  plaintiff,  but, 
at  the  same  time,  in  acting  for  his  master,  the  defendant  was,  as  against 
the  plaintiff,  entitled  to  stand  in  the  same  position  as  his  master  as  lessee 
of  the  sporting  rights  who  had,  as  tenant,  the  right  to  maintain  the 
game  by  all  means  which  did  not  involve  unreasonable  interference 
with,  or  damage  to,  the  property  of  the  lessor.  Reasonableness  —  the 
term  which  our  law  in  so  many  cases  treats  as  the  test  of  legality  in 
questions  of  human  conduct  —  of  course  includes,  when  you  are  con- 
sidering the  legality  of  the  destruction  of  another's  property,  the  com- 
parison (inter  alia)  of  the  value  of  that  which  is  destroyed  or  damaged 
in  order  to  preserve  it.  Here,  as  the  judgment  pronounced  by  Philli- 
more, J.,  shows,  the  damage  resulting  from  the  defendant's  act  was  not 
more  than  nominal.  It  appears  to  me  that,  in  considering  the  reason- 
ableness of  the  defendant's  conduct  in  the  present  case,  the  jury  were 
warranted  in  including  in  the  circumstances  to  which  they  expressly 


SECT.  III.]  COPE   V.    SHARPE.  601 

refer  in  their  second  finding  the  fact  that  the  defendant  was  not  a  mere 
volunteer  but,  as  representing  his  emploj'er,  the  plaintiff's  tenant,  in- 
vested, as  against  the  plaintiff  as  well  as  others,  with  the  right  to 
preserve  the  sitting  pheasants  from  being  burned  by  reasonable 
methods. 

I  have  so  far  been  dealing  with  the  view  of  the  Divisional  Court  that 
a  defense  of  "actual  necessity"  must  be  proved  in  order  to  establish 
an  answer  to  the  plaintiff's  case  in  this  action.  But  I  am  further  obliged 
to  differ  from  them  in  the  construction  which  they  appear  to  have 
placed  upon  the  second  finding  of  the  jury.  By  that  finding  the  jury 
in  express  terms  decided  that  "  the  method  adopted  by  the  defendant 
for  the  protection  of  his  master's  property  was  reasonably  necessary  in 
the  circumstances."  The  learned  judges  in' the  Divisional  Court,  if  I 
correctly  understand  their  judgments,  have  construed  this  finding  to 
mean  only  that  the  defendant  reasonably  believed  that  a  danger  to  his 
master's  property  existed  requiring  his  interference,  but  that  in  fact 
no  such  danger  existed.  I  must  confess  mj'self  unable  so  to  interpret 
it.  I  do  not  think  this  is  the  fair  or  natural  meaning  of  the  words. 
The  jury,  in  my  view,  have  not  found  that  the  method  adopted  by  the 
defendant  was  unnecessary.  They  have  found  that  it  was  in  fact  not 
necessary;  they  have  found  that  it  was  necessary  in  reason.  They 
have  not  in  either  of  their  findings  negatived  the  existence  of  an  immi- 
nent danger.  Read,  as  it  ought  to  be,  in  contrast  with  the  first  find- 
ing that  no  "actual  necessity"  existed,  the  second  finding,  that  a 
"reasonable  necessity"  for  the  defendant's  action  did  exist,  must,  I 
think,  mean  that  there  was,  at  the  time  when, the  defendant  acted,  a 
danger  to  the  property  of  the  defendant's  master,  so  far  imminent  that 
any  reasonable  person  in  the  circumstances  of  the  defendant  would  act 
reasonably  in  treating  it  as  necessary  to  adopt  the  method  for  the 
preservation  of  the  property  in  jeopardy  which  the  defendant  adopted. 
So  interpreted,  this  finding  in  my  opinion  gives  the  defendant,  as  it  was 
held  by  the  learned  county  court  judge  who  tried  the  case,  a  good 
defense,  and  this  opinion  appears  to  me  to  be  in  accord  with  the  state- 
ment of  the  law  by  Bramwell,  B.,  in  Kirk  v.  Gregory,  1  Ex.  D.  55,  from 
which  the  other  members  of  the  court  (Amphlett,  B.,  and  Cleasby,  B.) 
in  no  way  dissented.    I  think  that  this  appeal  should  be  allowed.^ 

Appeal  allowed. 

^  The  concurring  opinion  of  Buckley,  L.  J.,  and  the  dissenting  opinion  of  Vaughan 
Williams,  L.  J.,  are  omitted.  —  Ed. 


602  COMMONWEALTH    V.  DON'AHUE.  [CHAP.  V. 


COMMONWEALTH  v.  DONAHUE. 
Sdpremk  Judicial  Court  of  Massachusetts.     1889. 

[Reported  148  Massachusetts,  529.] 

Holmes,  J.  Tliis  is  an  indictment  for  robbery,  on  which  the  defend- 
ant has  been  found  guilty  of  an  assault.  The  evidence  for  the  Com- 
monwealth was,  that  the  defendant  liad  bought  clothes,  amounting  to 
twenty-one  dollars  and  fifty-five  cents,  of  one  Mitchelman,  who  called 
at  the  defendant's  house,  by  appointment,  for  his  pay  ;  that  some  dis- 
cussion arose  about  the  bill,  and  that  the  defendant  went  upstairs, 
brought  down  the  clothes,  placed  them  on  a  chair,  and  put  twenty' 
dollars  on  a  table,  and  told  Mitchebnan  that  he  could  have  the  money 
or  the  clothes  ;  that  Mitchelman  took  the  money  and  put  it  in  his 
pocket,  and  told  the  defendant  he  owed  him  one  dollar  and  fiftv-five 
cents,  whereupon  the  defendant  demanded  his  money  back,  and  on 
Mitchelman  refusing,  attacked  him,  threw  him  on  the  floor,  and  choked 
him  until  Mitchelman  gave  him  a  pocketbook  containing  twent^'-nine 
dollars.  The  defendant's  counsel  denied  the  receiving  of  the  pocket- 
iiook,  and  said  that  he  could  show  that  the  assault  was  justifiable, 
under  the  circumstances  of  the  case,  as  the  defendant  believed  that 
lie  had  a  riglit  to  recover  his  own  mone\'  by  force  if  necessary.  The 
presiding  justice  stated  that  he  should  be  obliged  to  rule  that  the 
defendant  would  nf)t  be  justified  in  assaulting  Mitchelman  to  get  his 
own  mone}',  and  that  he  should  rule  as  follows  :  "  If  the  jury  are  satis- 
fied that  the  defeildant  clioked  and  otherwise  assaulted  Mitchelman, 
they  would  be  warranted  in  finding  the  defendant  guilty,  although  the 
sole  motive  of  the  defendant  was  by  this  violence  to  get  from  Mitchel- 
man b}-  force  mone}'  which  the  defendant  honestl}'  believed  to  be  his 
own."  Upon  this  the  defendant  saved  his  exceptions,  and  declined  to 
introduce  evidence  ;  the  jury  were  instructed  as  stated,  and  found  the 
defendant  guilty. 

On  the  evidence  for  the  Commonwealth,  it  appeared,  or  at  the  lowest 
the  jury  might  have  found,  that  the  defendant  off"ered  the  twenty  dollars 
to  Mitchelman  only  on  condition  that  Mitchslman  should  accept  li)at 
sum  as  full  payment  of  his  disputed  bill,  and  that  Mitchelman  took  the 
mone}',  and  at  the  same  moment,  or  just  afterwards,  as  part  of  the 
same  transaction,  repudiated  the  condition.  If  this  was  the  case,  — 
since  Mitchelman,  of  course,  whatever  the  sum  due  him,  had  no  right 
to  that  particular  money  except  on  the  conditions  on  which  it  was 
offered  (Commonwealth  v.  Stebbins,  8  Gray,  492),  —  he  took  the  money 
wrongfully  from  the  [wssession  of  the  defendant,  or  the  jury  might 
have  found  thai  \\v  did,  whether  the  true  view  be  that  the  defendaht 
did  not  give  up  possession,  or  that  it  was  obtained  from  him  by  Mitchel- 
man's  fraud.     Commonwealth  v.  Devlin,  141  Mass.  423,  431  ;  Chisser's 


SECT.  III.]  COMMONWEALTH    V.    DONAHUE.  603 

Case,  T.  Raj'm,  275,  276  ;  Regiiia  v.  Thompson,  Leigh  &  Cave,  225  ; 
Regina  v.  Stanley,  12  Cox  C.  C.  2G9  ;  Regina  v.  Rod  way,  9  C.  &  P. 
784  ;  Rex  v.  Williams,  6  C.  &  P.  390  ;  2  East  P.  C.  u.  16,  ss.  110,  113. 
See  Regina  v.  Cohen,  2  Den.  C.  C.  249,  and  cases  infra.  The  defend- 
ant made  a  demand,  if  that  was  necessary,  which  we  do  not  imply, 
before  using  force.  Green  v.  Goddard,  2  Salk.  641  ;  Polkinhorn  r. 
Wright,  8  Q.  B.  (N.  S.)  197;  Commonwealth  v.  Clark,  2  Met.  23,  25, 
and  cases  infra. 

It  is  settled  hy  ancient  and  modern  authority-  that,  under  such  cir- 
cumstances, a  man  may  defend  or  regain  his  momentarily  interrupted 
possession  by  the  use  of  reasonable  force,  short  of  wounding  or  the 
employment  of  a  dangerous  weapon.  Commonwealth  v.  Lynn,  123 
Mass.  218;  Commonwealth  v.  Kennard.  8  Pick.  133;  Anderson  v. 
State,  6  Baxter,  608;  State  v.  Elliot,  11  N.  H.  540,  545;  Rex  v. 
Milton,  Mood.  &  Malk.  107  ;  Y.  B.  9  Edw.  IV.  28,  pi.  42  ;  19  Hen.  VL 
31,  pi.  59  ;  21  Hen.  VI.  27,  pi.  9.  See  Seaman  v.  Cuppledick,  Owen, 
150  ;  Taylor  v.  Markham,  Cro.  Jac.  224  ;  s.  c.  Yelv.  157,  and  1  Brownl. 
215  ;  Shingleton  v.  Smith,  Lutw.  1481,  1483  ;  2  Inst.  316  ;  Finch,  Law, 
203  ;  2  Hawk.  P.  C.  c.  60,  s.  23  ;  3  Bl.  Com.  121.  To  this  extent  the 
right  to  protect  one's  possession  has  been  regarded  as  an  extension  of 
the  right  to  protect  one's  person,  with  which  it  is  generally  mentioned. 
Baldwin  v.  Hayden,  6  Conn.  453  ;  Y.  B.  19  Hen.  VI.  31.  pL  59  ;  Rogers 
V.  Spence,  13  M.  &  W.  571,  581  ;  2  Hawk.  P.  C.  c.  60,  s.  23  ;  3  BL 
Com.  120,  131. 

We  need  not  consider  whether  this  explanation  is  quite  adequate. 
There  are  weighty  decisions  which  go  further  than  those  above  cited, 
and  which  hardly  can  stand  on  the  right  of  self-defence,  but  involve 
other  considerations  of  policy.  It  has  been  held  that,  even  where  a 
considerable  time  had  elapsed  between  the  wrongful  taking  of  the 
defendant's  property  and  the  assault,  the  defendant  had  a  right  to 
regain  possession  by  reasonable  force,  after  demand  upon  the  third 
person  in  possession,  in  like  manner  as  he  might  have  protected  it 
without  civil  liability.  Whatever  the  true  rule  may  be,  probably  there 
is  no  difference  in  this  respect  between  the  civil  and  the  criminal  law. 
Blades  v.  Higgs,  10  C.  B.  (N.  S.)  713  ;  12  C.  B.  (N.  S.)  501  :  13  C.  B. 
(N.  S.)  844;  and  11  H.  L.  Cas.  621  ;  Commonwealth  v.  McCue,  16 
Gray,  226,  227.  The  principle  has  been  extended  to  a  case  where  the 
defendant  had  yielded  possession  to  the  person  assaulted,  through  the 
fraud  of  the  latter.  Hodgeden  v.  Hubbard,  18  Vt.  504.  See  Johnson 
V.  Perry,  56  Vt.  703.  On  the  other  hand,  a  distinction  has  been  taken 
between  the  riglit  to  maintain  possession  and  the  right  to  regain  it 
from  another  who  is  peaceaijly  established  in  it,  although  the  possession 
of  the  latter  is  wrongful,  l^obb  r.  P>os\vcith,  Litt.  Sel.  Cas.  81.  Sec 
Barnes  v.  Martin,  15  Wis.  240  ;  Andre  v.  Johnson,  6.Blackf.  375; 
Davis  V.  Whitridge,  2  Strobh.  232  ;  3  Bl.  Com.  4.  It  is  unnecessary 
to  decide  whether,  in  this  case,  if  Mitchelman  had  taken  the  money 
with  a  fraudulent  intent,  but  had  not  repudiated  the  condition  until 


60-i  HODCEDEX    V.    HUBBARD.  [CHAP.  V, 

afterwards,  the  defendant  would  have  had  any  other  remedy  than  to 
hold  him  to  his  bargain  if  he  could,  even  if  lie  knew  that  Mitchelman 
still  had  the  identical  uione}'  upon  his  i)erson. 

If  the  force  used  by  the  defendant  was  excessive,  the  jury  would 
have  been  warranted  in  finding  him  guilty.  Whether  it  was  excessive 
or  not  was  a  question  for  them  ;  the  judge  could  not  rule  that  it  was 
not,  as  matter  of  law  Commonwealth  v.  Clark,  2  Met.  23.  Therefore 
the  instruction  given  to  them,  taken  only  literally,  was  correct.  But 
the  preliminar}'  statement  went  further,  and  was  erroneous  ;  and  coup- 
ling that  statement  with  the  defendant's  offer  of  proof,  and  his  course 
after  the  rulings,  we  think  it  fair  to  assume  that  the  instruction  was  not 
understood  to  be  limited,  or,  indeed,  to  be  directed  to  the  case  of 
excessive  force,  whicn,  so  far  as  appears,  had  not  been  mentioned,  but 
that  it  w-as  intended  and  understood  to  mean  that  an}-  assault  to  regain 
his  own  money  would  warrant  finding  the  defendant  guilt}'.  Therefore 
the  exceptions  must  be  sustained. 

It  will  be  seen  that  our  decision  is  irrespective  of  the  defendant's 
belief  as  to  what  he  had  a  right  to  do.  If  the  charge  of  robbery  had 
been  persisted  in,  and  the  difficulties  which  we  have  stated  could  have 
been  got  over,  we  might  have  had  to  consider  cases  like  Regina  v. 
Boden,  1  C.  &  K.  395,  397  ;  Regina  v.  Hemmings,  4  F.  &  F.  50  ; 
State  V.  Hollywa}',  41  Iowa,  200.  Compare  Commonwealth  v.  Steb- 
bins,  8  Gray,  492  ;  Commonw^ealth  v.  McDuffy,  12G  Mass.  467.  There 
is  no  question  here  of  the  effect  of  a  reasonable  but  mistaken  belief 
with  regard  to  the  facts.  State  i\  Nash,  88  N.  C.  618.  The  facts  were 
as  the  defendant  believed  them  to  be.  JEkcceptions  sustained. 


:  HODGEDEN  v.   HUBBARD. 

# 

Supreme  Court  of  Vermont,  1843. 

[Reported  18  Vt.  504.] 

Trespass  for  assault  and  battery,  and  for  taking  and  carrying  away 
a  stove,  the  property  of  the  plaintiff.  Plea  the  general  issue,  with  notice 
of  special  matter  of  defense,  and  trial  by  jury,  —  Rcdfield,  J.,  pre- 
siding. On  trial  the  plaintiff  gave  e\4dence,  tending  to  prove,  that,  on 
the  nineteenth  day  of  September,  1S42,  he  purchased  at  the  Tyson 
w^arehouse,  in  Montpelier,  a  stove,  and  gave  his  promissory  note  there- 
for, payable  in  six  months;  that  the  agent,  who  had  charge  of  the 
warehouse,  was  absent  at  the  time,  and  the  sale  was  made  by  the  de- 
fendant Hubbard,  who  was  clerk  for  the  agent,  as  was  also  the  defendant 
AjTes;  tliat  on  the  same  day,  and  soon  after  the  sale,  the  defendants 
learned,  that  the  plaintiff'  was  irresponsible  as  to  property,  and  started 


SECT.  III.]        .  HODGEDEN   V.    HUBBAUD.  605 

in  pursuit  of  him,  and  overtook  him  about  two  miles  from  Montpelier 
and  took  the  stove  from  him  by  force;  but  it  did  not  appear,  how  much 
force  w^as  used,  or  its  character;  but  it  did  appear,  that,  in  the  attempt 
to  dispossess  the  plaintiff  of  the  stove,  he  drew  his  knife,  and  that  he 
was  then  forcibly  held  by  one  of  the  defendants,  while  the  other  took 
possession  of  the  stove;  and  the  testimony  tended  to  prove,  that  the 
resistance  of  the  plaintiff  was  such,  that  the  defendants  used  \ao- 
lence  and  applied  force  to  his  person  with  gi-eat  rudeness  and  outrage. 
The  defendants  then  gave  evidence,  tending  to  prove  that  the  pur- 
chase of  the  stove  by  the  plaintifT  was  effected  by  means  of  his  false 
and  fraudulent  representations  as  to  his  al)ility  to  pay,  and  as  to  the 
amount  of  his  property;  that,  among  other  things,  the  plaintiff  repre- 
sented, that  he  owned  a  farm  in  Cabot  and  considerable  stock  upon  it, 
that  he  owned  the  team  that  he  then  had  with  him,  and  that  he  carried 
on  a  large  business  manufacturing  butter  firkins,  etc.;  that  it  was 
only  by  means  of  these  representations,  and  others  of  like  character, 
that  Hubbard  was  induced  to  sell  the  stove  to  the  plaintiff  on  credit; 
that  soon  after  the  delivery  of  the  stove,  on  the  same  day,  Hubbard 
learned,  upon  inquiry,  from  a  person  whom  he  saw  from  Cabot,  that 
the  plaintiff  was  entirely  irresponsible,  and  that  his  representations  as 
to  his  property  WTre  wholly  false;  and  that  the  defendants  immediately 
followed  the  plaintiff,  and  took  the  stove  from  him,  and  told  him  that 
he  could  have  the  note  by  calling  for  it. 

The  defendants  requested  the  court  to  instruct  the  jury,  that,  if  they 
should  find  that  the  purchase  of  the  stove  on  credit  was  effected  only 
by  means  of  the  false  and  fraudulent  representations  of  the  plaintiff,  as 
above  specified,  the  title  to  the  stove  did  not  vest  in  the  plaintiff,  and 
the  defendants,  as  servants  of  the  agent  of  the  Tyson  warehouse,  were 
justified  in  pursuing  the  plaintiff  and  taking  the  stove  from  him  by 
force,  and  that,  if  they  used  no  more  force  than  was  absolutely  neces- 
sary to  effect  this  object,  the  plaintiff  could  not  reco\er  upon  his  count 
for  an  assault  and  battery.  But  the  court  charged  the  jury  that, 
although  the  plaintiff  was  guilty  of  misrepresentation  and  fraud,  in  ob- 
taining the  stove,  in  the  manner  attempted  to  be  proved  by  the  de- 
fendants, yet  this  would  not  justify  the  defendants  in  forcibly  taking 
the  property  from  him;  that  the  property  in  the  stove  would  not  be 
changed  by  the  purchase,  and  the  defendants  might  take  it  peaceably, 
wherever  they  could  find  it;  but  that  the  defendants,  having  delivered 
the  stove  to  the  plaintiff,  could  not  justify  taking  it  from  him  by 
blows  inflicted  upon  his  person,  or  by  holding  him,  but  should  resort  to 
redress  by  legal  process;  and  that,  if  they  should  find,  that  the  prop- 
erty in  the  stove  was  not  changed,  for  the  reason  stated,  and  that  the 
defendants  took  it  by  violence,  in  the  manner  attempted  to  be  shown 
by  the  plaintiff,  although  they  used  no  more  force  than  was  necessary 
to  accomplish  that  object  under  the  resistance  of  the  plaintiff,  they 
would  still  be  liable  in  this  action;   but  the  court,  in  that  case,  recom- 


606  HODGEDEN  V.    HUBBARD.  [CHAP.  V. 

mended  to  the  jury  to  give  small  damages.     Verdict  for  plaintiff  for 
one  dollar  damages. 

Williams,  C.  J.  It  is  admitted,  in  this  ease,  that  the  property  in  the 
stove  did  not*  pass  to  the  plaintiff,  that,  though  the  plaintiff'  obtained 
possession  of  the  stove,  yet  it  was  by  such  means  of  falsehood  and  fraud, 
criminal  in  the  eye  of  the  law,  as  made  the  possession  unlawful,  and 
that,  although  the  consent  of  the  owner  was  apparently  obtained  to 
the  delivery  of  the  possession  to  the  plaintiff,  yet,  as  it  respects  the 
plaintiff,  and  so  far  as  the  right  of  property  was  concerned,  no  such 
consent  was  given.  In  the  cases  of  Buffington  v.  Gerrish,  15  Mass.  156, 
and  Badger  v.  Phinney,  lb.  359,  it  was  decided  that,  under  similar  cir- 
cumstances, as  between  the  owner  and  the  person  thus  obtaining  prop- 
erty, or  between  the  owner  and  the  existing  creditors  of  such  person,  no 
property  passed  out  of  the  real  owner,  and  he  might  reclaim  it,  as  against 
such  person,  or  hi;s  creditors. 

In  the  present  case  the  defendants  had  clearly  a  right  to  retake  the 
property,  thus  fraudulently  obtained  from  them,  if  it  could  be  done 
without  unnecessary  violence  to  the  person,  or  without  breach  of  the 
peace.  It  is  admitted  by  the  counsel  for  the  plaintiff,  that  a  right  to 
re-capture  existed  in  the  defendants,  if  it  could  be  done  without  vio- 
lence, or  breach  of  the  peace.  And  how  far  this  qualification  of  the 
right  to  retake  property,  thus  taken,  was  intended  for  the  security,  or 
benefit,  of  the  fraudulent  possessor  may  admit  of  some  doubt.  Who- 
ever is  guilty  of  a  breach  of  the  peace,  or  of  doing  unnecessary  ^^olence 
to  the  person  of  another,  although  it  may  be  in  the  assertion  of  an  un- 
questioned and  undoubted  right,  is  liable  to  be  prosecuted  therefor. 
But  the  fraudulent  possessor  is  not  the  protector  of  the  public  interest. 

In  the  case  before  us  it  is  stated,  that  it  did  not  appear  "how  much 
force  was  used,  or  its  character,"  before  the  defendants  were  assaulted 
by  the  plaintiff.  To  obtain  possession  of  the  property  in  question  no 
violence  to  the  person  of  the  plaintiff  was  necessary,  or  required,  unless 
from  his  resistance.  It  was  not  like  property  carried  about  the  person, 
as  a  watch,  or  money;  nor  did  it  require  a  number  of  people  to  effect 
the  object.  The  plaintiff  had  no  lawful  possession,  nor  any  right  to  re- 
sist the  attempts  of  the  defendants  to  regain  the  property,  of  which  he 
had  unlawfully  and  fraudulently  obtained  the  possession.  By  drawing 
his  knife  he  became  the  aggressor,  inasmuch  as  he  had  no  right  thus  to 
protect  his  fraudulent  attempt  to  acquire  the  stove,  and  the  possession 
of  the  same,  and  it  was  the  right  of  the  defendants  to  hold  him  by  force, 
and,  if  they  made  use  of  no  unnecessary  A-iolence,  they  were  justified; 
if  they  were  guilty  of  more,  they  were  liable. 

Under  the  \dew  of  the  evidence,  as  considered  and  claimed  by  the 
defendants,  they  were  entitled  to  the  charge  requested.  The  refusal 
of  the  court  so  to  charge  was  erroneous;  and  although  the  court  stated 
to  the  jury  correctly,  that  the  defendants  could  not  justify  retaking 
the  property  by  blows  inflicted  on  the  person  of  the  plaintiff",  yet  tliis 


1 


SECT.  III.]  McLEOD   V.   JONES.  607 

was  not  meeting  the  request;  and  the  charge  was  evidently  erroneous, 
when  the  jury  were  told,  that  the  defendants  would  be  liable,  although 
they  used  no  more  force  than  was  necessary  to  accomplish  the  object 
of  retaking  the  property,  under  the  resistance  of  the  plaintiff.  The  re- 
sistance of  the  plaintiff  was  unlawful,  in  regard  to  the  particular  species 
of  property,  which  was  then  the  subject  of  controversy,  under  the  facts 
claimed  by  the  defendants,  and  which  must  have  been  found  to  the 
satisfaction  of  the  jury,  as  would  seem  from  their  verdict. 

On  the  second  count  in  the  declaration  the  plaintiff  could  have  no 
claim  whatever.  The  defendants  were  the  agents  of  the  true  owner; 
the  plaintiff  was  the  wrongdoer,  and  acquired  no  right,  against  the  de- 
fendants, to  either  property,  or  possession,  if  the  facts  were  as  stated  in 
the  case. 

The  judgment  of  the  county  court  is  reversed. 


McLEOD  V.  JONES. 
Supreme  Judicial  Court  of  Massachusetts    1870. 

[Reported  105  Mass.  403.] 

Tort  for  forcibly  entering  the  plaintiff's  close  in  Taunton,  and 
removing  and  converting  to  the  defendant's  use  household  furniture 
found  therein. 

At  the  trial  in  the  Superior  Court,  before  Pitman,  J.,  property  in 
and  possession  of  the  close  (which  was  the  upper  story  of  a  house)  by 
the  plaintiff  were  admitted;  and  the  plaintiff  introduced  evidence  to 
show  that  he  had  hired  and  occupied  the  premises  as  a  residence  and 
dwelling  for  himself  and  his  wife  and  two  children,  about  two  years, 
when  in  September,  1868,  he  took  them -on  a  visit  to  Fall  River,  and  he 
himself  went  to  New  York  on  a  visit  to  his  father;  that  he  intended  to 
return  to  Taunton  in  about  four  weeks,  but  for  various  reasons  changed 
his  original  design  and  ceased  to  reside  in  Taunton;  that  three  or 
four  days  after  he  went  away,  "leaving  his  furniture  and  household 
goods  in  the  same  state  as  he  used  them  for  housekeeping  purposes, 
and  the  doors  of  liis  tenement  locked,"  the  defendant  went  to  the  house 
with  a  key  that  would  fit  the  door,  unlocked  and  entered  the  tenement, 
and  took  and  carried  away  the  furnitiire. 

It  appeared  "  that  the  plaintiff,  while  li\ing  in  Providence,  had  given 
to  the  defendant  a  bill  of  sale  of  a  part  or  the  whole  of  the  articles  of 
furniture,  and  had  subsequently  brought  them  with  him  to  Taunton; 
and  that  the  plaintiff  had  formerly  given  to  the  defendant  a  mortgage 
of  certain  goods  owned  and  used  by  the  plaintiff  in  his  shop,  some  of 
which  goods  the  plaintiff  testified  that  he  subsequently  carried  to  his 
house,  and  were  among  the  goods  taken  by  the  defendant." 


608  McLEOD   V.    JONES.  [GHAP.  V. 

The  defendant  claimed  all  the  articles  taken  by  him,  under  the  bill 
of  sale  and  mortgage,  and  contended  that,  from  the  circumstances 
proved,  he  had  a  right  to  believe  that  at  the  time  of  the  entry  the 
plaintiff  did  not  intend  to  return  to  Taunton;  and  he  asked  the  judge 
to  rule  that  "if  the  plaintiff  had  left  the  city  with  his  family,  leaving 
household  furniture,  the  defendant's  property,  in  his  last  place  of  resi- 
dence in  the  city,  a  hired  tenement,  and  the  defendant,  having  reason- 
able cause  to  believe,  and  believing,  that  the  plaintiff  and  family  did  not 
intend  to  return,  entered  said  residence  in  a  quiet  and  peaceable  man- 
ner and  took  away  his  goods,  causing  no  other  disturbance  than  was 
necessary  in  order  to  get  the  same,  he  would  not  be  liable  in  this  action." 
The  judge  refused  so  to  rule ;  and  ruled  that  "  if  the  defendant  entered 
the  plaintifP's  dwelling-house  in  the  manner  shown  by  the  plaintiff's 
evidence  above  reported,  and  carried  away  the  goods  as  shown  by  the 
plaintiff's  evidence,  he  would  be  liable  in  this  action  for  a  forcible  en- 
try, although  he  went  there  to  get  his  own  property;  and  that  the 
defendant  would  have  no  right  to  enter  the  same  in  such  a  manner, 
and  for  such  a  purpose,  without  some  license  or  permission  from  the 
plaintiff,  express  or  implied,  other  than  the  mere  fact  that  his  goods 
Avere  in  said  premises  under  the  circumstances  before  stated."  The 
jury  returned  a  verdict  for  the  plaintiff,  and  the  defendant  alleged 
exceptions. 

Wells,  J.  The  defendant  was  liable  as  a  trespasser  for  entering 
the  plaintiff's  close,  unless  he  can  justify  his  entry  by  some  legal  right, 
or  by  some  license  or  permission  so  to  do.  The  plaintiff's  absence  will 
not  excuse  him.  Reasonable  cause  to  believe,  and  actual  belief  that  the 
plaintiff  and  liis  family  did  not  intend  to  return,  are  no  defense.  The 
only  question  is,  whether  the  ruling  of  the  court  below  was  correct, 
that  "  the  mere  fact  that  his  goods  were  in  said  premises  under  the  cir- 
cumstances stated"  did  not  furnish  a  sufficient  ground  from  wliich  a 
license,  permission  or  legal  right  could  be  inferred. 

In  the  decision  of  this  question,  we  must  assume  that  the  defendant's 
claim  would  have  been  sustained,  that  his  title,  as  mortgagee  of  all  the 
property  taken  away  by  him,  was  valid,  and  his  mortgage  debt  un- 
paid. He  had  a  right  then  to  the  possession  of  the  property  which  he 
took. 

But  the  possession  of  the  plaintiff,  as  mortgagor,  was  not  wrongful. 
The  goods  were  rightfully  upon  his  premises.  There  is  nothing  to 
show  that  the  terms  of  the  mortgage,  or  bill  of  sale,  under  which  the 
defendant  claimed  them,  gave  him  any  special  authority  to  enter  for 
the  purpose  of  recovering  the  property,  in  any  event;  nor  that  the 
removal  of  the  goods  from  the  shop  to  the  house,  or  from  Providence 
to  Taunton,  was  inconsistent  with  the  rights  of  the  mortgagee,  or  against 
his  wishes.  The  removal  from  Providence  was  about  two  years  be- 
fore the  time  of  this  entry. 

The  goods  then  were  rightfully  in  the  custody  of  the  plaintiff,  and 


SECT.  III.]  McLEOD   V.   JONES.  G09 

within  his  close.  The  defendant  was  the  owner  of  the  legal  title,  with 
a  present  right  of  possession.  Does  that  alone  justify  him  in  a  breach 
of  the  plaintiff's  close?  A  majority  of  the  court  are  of  opinion  that  it 
does  not. 

One  whose  goods  are  stolen,  or  otherwise  illegally  taken  from  him, 
may  pursue  and  retake  them  whenever  they  may  be  found.  No  one 
can  deprive  him  of  this  right,  by  wrongfully  placing  them  upon  his  own 
close.  Patrick  v.  Colerick,  3  M.  &  W.  483.  Webb  v.  Beavan,  6  M.  &  G. 
1055,  and  note.  Com.  Dig.  Trespass  D,  citing  2  Rol.  Ab.  565,  1.  54. 
Bac.  Ab.  Trespass  F,  1.  But  if  they  are  deposited  upon  the  land  of 
another,  who  is  not  a  participant  in  the  wrongful  taking,  the  owner  can- 
not enter  upon  his  land  to  retake  them;  unless  in  case  of  theft,  and 
fresh  pursuit.  20  Vin.  Ab.  506,  Trespass  H,  a.  2,  pi.  4,  5.  So,  from 
the  necessity  of  the  case,  one  whose  cattle  escape  upon  the  land  of  an- 
other may  follow  and  drive  them  back,  without  being  a  trespasser,  un- 
less the  escape  itself  was  a  trespass.  Com.  Dig.  Trespass  D,  citing 
2  Rol.  Ab.  565,  1.  35. 

In  these  cases,  the  law  gives  the  party  a  right  to  enter  for  that  par- 
ticular purpose. 

In  other  cases  a  right  or  license  to  enter  upon  land  results,  or  may  be 
inferred,  from  the  contracts  of  the  parties  in  relation  to  personalty. 
Permission  to  keep,  or  the  right  to  have  one's  personal  property  upon 
the  land  of  another,  involves  the  right  to  enter  for  its  removal.  Doty 
V.  Gorham,  5  Pick.  487.  Bac.  Ab.  Trespass  F,  1.  White  v.  Elwell,  48 
Maine,  360. 

A  sale  of  chattels,  which  are  at  the  time  upon  the  land  of  the  seller, 
will  authorize  an  entry  upon  the  land  to  remove  them,  if,  by  the  express 
or  implied  terms  of  the  sale,  that  is  the  place  where  the  purchaser  is  to 
take  them.  Wood  v.  Manley,  11  Ad.  &  El.  34.  Nettleton  v.  Sikes,  8 
Met.  34.  Giles  v.  Simonds,  15  Gray,  441.  Drake  v.  Wells,  11  Allen, 
141.    McNeal  v.  Emerson,  15  Gray,  384. 

A  license  is  implied,  because  it  is  necessary  in  order  to  carry  the 
sale  into  complete  effect;  and  is  therefore  presumed  to  have  been  in 
contemplation  of  the  parties.  It  forms  a  part  of  the  contract  of  sale. 
The  seller  cannot  deprive  the  purchaser  of  his  property,  or  drive  him 
to  an  action  for  its  recovery,  by  withdrawing  his  implied  permission 
to  come  and  take  it.  This  proposition  does  not  apply,  of  course,  to  a 
case  where  a  severance  from  the  realty  is  necessary  to  convert  the 
subject  of  the  sale  into  personalty,  and  the  revocation  is  made  before 
such  severance. 

But  there  is  no  such  inference  to  be  drawn,  when  the  property,  at  the 
time  of  sale,  is  not  upon  the  seller's  premises ;  or  when,  by  the  terms  of 
the  contract,  it  is  to  be  delivered  elsewhere.  And  when  there  is  nothing 
executory  or  incomplete  between  the  parties  in  respect  to  the  property, 
and  there  is  no  relation  of  contract  between  them  affecting  it,  except 
what  results  from  the  facts  of  ownership  or  legal  title  in  one,  and  pos- 


610  McLEOD   V.   JONES.  [CHAP.  V. 

session  in  the  other,  no  inference  of  a  Hcense  to  enter  upon  lands  for  the 
recovery  of  the  property  can  be  drawn  from  that  relation  alone.  20 
Vin.  Ab.  508,  Trespass  H,  a.  2,  pi.  18.  Anthony  v.  Haneys,  8  Bing.  186. 
Williams  v.  Morris,  8  M.  &  W.  488. 

We  think  the  authorities  cited  illustrate  and  establish  these  dis- 
tinctions. 

It  is  said  in  Com.  Dig.  Trespass  D,  citing  2  Rol.  Ab.  566,  1.  30,  that  I 
may  not  enter  lands  "  for  retaking  goods,  which  he,  who  holds  them  in 
common  with  me,  put  there;  for  though  a  tenant  in  common  may 
retake  goods  in  common,  when  the  other  takes  them,  yet  he  cannot 
justify  a  trespass  to  do  it." 

In  Wood  V.  Manley,  11  Ad.  &  El.  34,  where  the  doctrine  that  a 
sale  of  goods,  to  be  taken  on  the  premises  of  the  seller,  gives  a  license 
to  the  purchaser  to  enter  and  take  them,  is  laid  down,  it  is  guarded  by 
the  remark  of  Patteson,  J.,  "I  do  not  say  that  a  mere  purchase  will 
give  a  license." 

In  Bac.  Ab.  Trespass  F,  1,  it  is  said:  "But  if  J.  S.  have  commanded 
A.  to  deliver  a  beast  to  J.  N.  and  J.  N.  go  into  the  close  of  J.  S.  to  re- 
ceive the  beast,  the  action  does  lie;  for,  as  the  beast  might  have  been 
delivered  at  the  gate  of  the  close,  the  going  of  J.  N.  thereinto  is  not 
necessary." 

In  the  note  to  Webb  v.  Beavan,  6  M.  &  G.  1055,  is  a  citation  from 
the  year  books,  9  Edw.  IV.  35,  in  which  Littleton,  J.,  after  laying  down 
the  doctrine  that  a  man  may  enter  the  close  of  another  to  retake  his 
own  goods  Avrongfully  put  there,  is  reported  to  have  said:  "But  it  is 
otherwise  if  I  bail  goods  to  a  man.  I  cannot  enter  his  house  and  take 
the  goods,  for  they  did  not  come  there  by  wrong,  but  bv  the  act  of  us 
both." 

It  is  by  the  act  of  both,  that  goods,  upon  which  the  defendant  had 
only  a  chattel  mortgage,  leaving  the  possession  rightfully  with  the 
plaintiff,  were  in  the  plaintiff's  house.  In  20  Vin.  x\b.  507,  Trespass  H, 
a.  2,  pi.  12,  it  is  said:  "If  a  man  takes  my  goods  and  puts  them  upon 
his  land,  I  may  enter  and  retake  them.  Contrary  upon  bailment  of 
goods,"  citing  the  above  authority  of  Littleton.  A  note  contains  the 
following:  "  When  a  man  bails  goods  to  another  to  keep,  it  is  not  lawful 
for  him,  though  the  doors  are  open,  to  enter  into  the  house  of  the  bailee 
and  to  take  the  goods,  but  ought  to  demand  them;  and  if  they  are 
denied,  to  bring  writ  of  detinue,  and  to  obtain  them  by  law,"  citing 
Bro.  Ab.  Trespass,  pi.  208,  and  21  Hen.  VII.  13.  A  right  to  enter  the 
premises  of  the  mortgagor,  without  legal  process,  is  not  essential  to  the 
security  of  the  mortgagee  of  personal  property.  Permission  to  do  so  is 
not  implied,  therefore,  from  the  existence  of  that  relation  alone.  If 
there  was  anything  in  the  form  of  the  mortgage  or  bill  of  sale,  or  in  the 
nature  and  circumstances  of  the  plaintiffs  possession  of  the  property, 
which  gave  the  defendant  a  right  to  seek  it  within  the  close  of  the 
plaintiff,  where  it  had  been  deposited  since  the  sale  of  the  mortgage  or 


SECT.  III.]  SALISBURY    V.    GREEN.  611 

bill  of  sale,  it  should  have  been  made  to  appear.  The  burden  was  upon 
the  defendant  to  establish  the  special  right  which  he  set  up  in  justifica- 
tion of  his  entry.  At  the  trial,  he  based  his  right  to  enter,  solely  upon 
his  title  to  the  personal  property,  and  the  supposed  abandonment  of 
the  premises  by  the  plaintiff;  and  asked  the  court  to  rule  that  that 
was  sufficient.  The  court  held  it  to  be  insufficient  "without  some 
license  or  permission  from  the  plaintiff,  express  or  implied."  The  de- 
fendant does  not  show  that  there  was  anything  in  the  terms  of  his  bill 
of  sale  or  mortgage,  or  in  the  situation  of  the  property  at  the  time  it 
was  made,  or  in  the  circumstances  of  the  plaintiff's  possession  at  the 
time  of  the  entry,  from  which  such  license  or  permission  could  be  im- 
plied; and  he  asked  no  instructions  upon  the  evidence,  upon  that 
point,  if  any  existed  at  the  trial. 

In  McNeal  v.  Emerson,  15  Gray,  384,  the  property  mortgaged  was 
furniture,  which  remained  in  the  same  situation  as  when  the  mortgage 
was  made,  and  the  circumstances  left  the  case  in  the  same  position 
substantially  as  a  sale  of  personal  property  to  be  removed  by  the 
purchaser. 

In  the  case  of  Heath  v.  Randall,  4  Cush.  195,  the  jury  must  have 
found,  under  the  instructions  given  them,  that  the  contract  was  that 
the  defendant  had  a  right  to  take  the  property  away  any  day  until 
paid  for;  which  was  plainly  understood  to  mean  a  right  to  take  it  from 
the  premises  of  the  bailee.  It  is  to  be  observed  also,  that  in  that  case  the 
question  pressed  in  the  argument,  and  to  which  the  discussion  by  the 
court  was  mainly  directed,  was  that  of  the  right  to  terminate  the 
bailment  wnthout  demand  of  the  balance  due  upon  the  conditional 
purchase;  the  right  of  entry  upon  the  plaintiff's  close  being  considered 
only  incidentally. 

A  majority  of  the  court  are  of  opinion  that  the  facts  reported  in  this 
case  are  not  sufficient  to  sustain  the  justification  relied  on  by  the  de- 
fendant, and  that  the  instructions  upon  that  point  were  correct.  If 
the  defendant  established  his  title  to  the  property  taken  away,  he  would 
of  course  be  liable  only  for  such  injury  as  he  did  to  the  plaintiff's  house. 
But  no  question  appears  to  be  raised  as  to  the  measure  of  damages,  ajid 
we  are  to  presume  that  proper  instructions  upon  that  point  were  given. 

Exceptions  overruled. 


SALISBURY   V.   GREEN. 
Supreme  Court  of  Rhode  Island,  1892. 

[Reported  17  R.  I.  758.] 

Per  Curl\m.  At  the  trial  of  this  case  in  the  Court  of  Common  Pleas, 
the  plaintiff  requested  the  court  to  charge  the  jury  "that,  if  the  de- 
fendant entered  upon  the  premises  of  the  plaintiff  without  the  permis- 


G12  VINCENT    V.    LAKE    ERIE    TRANSPORTATION   CO.       [CHAP.  V. 

sion  of  the  plaintiff,  then  the  plaintiff  is  entitled  to  a  verdict."  The 
court  refused  this  request  and  charged  the  jury  "that  the  defendant 
had  a  right  to  enter  upon  the  plaintiff's  premises  to  get  possession  of 
and  recover  his  property,  using  no  more  force  than  was  necessary,  and 
committing  no  breach  of  the  peace."  We  think  this  was  error.  The 
horse  in  question  was,  and  for  some  time  previous  had  been,  in  the  peace- 
able possession  of  the  plaintiff,  under  a  claim  of  right,  and  hence  the 
defendant,  although  claiming  that  the  horse  was  his,  was  not  war- 
ranted in  entering  upon  the  plaintiff's  premises  without  his  permission, 
and  taking  forcible  possession  thereof,  against  the  will  of  the  plaintiff. 
For,  even  if  the  defendant  was  in  fact  the  legal  owner  of  the  horse, 
coupled  with  a  present  right  of  possession,  that  alone  did  not  justify 
him  in  a  breach  of  the  plaintiff's  close.  If  the  horse  had  been  stolen  or 
otherwise  illegally  taken  from  the  defendant,  it  is  stating  it  within  the 
established  rule  to  hold  that  he  woidd  have  a  right  to  pursue  and  re- 
take it  wherever  it  might  be  found,  pro\dded  he  could  do  so  without  a 
breach  of  the  peace.  See  Cooley  on  Torts,  50,  Tit.  Recaption  or 
Reprisal.  In  this  case,  however,  it  appears  that  the  defendant,  some 
time  previous  to  the  occurrence  in  question,  had  delivered  possession 
of  said  horse  to  one  Whitfield  Dyer,  under  an  agreement  to  sell  it  to 
him,  and  that  said  Dyer's  father  had  exchanged  said  horse  for  another 
with  a  third  person,  from  whom  the  plaintiff  bought  it.  The  A\Tongful 
taking  of  the  property  from  the  possession  of  the  owner,  therefore, 
together  with  the  fresh  pursuit  which  must  appear  in  order  to  warrant 
the  recaption  thereof  by  force,  was  not  shown  in  this  case.  See  Kirby 
V.  Foster,  17  R.  I.  437;  McLeod  v.  Jones,  105  Mass.  403.  As  there 
must  be  a  new  trial  of  the  case,  for  the  reason  above  given,  it  becomes 
unnecessary  for  us  to  decide  whether  or  not  the  verdict  was  against  the 
evidence. 

Petition  for  new  trial  granted. 


VINCENT  V.   LAKE  ERIE  TRANSPORTATION  CO. 

Supreme  Court  of  Minnesota,  1910. 

[Reported  109  Minn.  456.] 

O'Brien,  J.  The  steamship  Reynolds,  owned  by  the  defendant,  was 
for  the  purpose  of  discharging  her  cargo  on  November  27,  1905,  moored 
to  plaintiffs'  dock  in  Duluth.  While  the  unloading  of  the  boat  was 
taking  place  a  storm  from  the  northeast  developed,  which  at  about  ten 
o'clock  P.  .\i.,  when  the  unloading  was  completed,  had  so  grown  in 
violence  that  the  wind  was  then  moving  at  fifty  miles  per  hour  and 
continued  to  increase  during  the  night.  There  is  some  e\ddence  that 
one,  and  perhaps  two,  boats  were  able  to  enter  the  harbor  that  night, 
but  it  is  plain  that  navigation  was  practically  suspended  from  the 


t 


SECT.  III.]       VINCENT    V-    LAKE    EKIE    TRANSPORTATION    CO.  613 

hour  mentioned  until  the  morning  of  the  twenty-ninth,  when  the 
storm  abated,  and  during  that  time  no  master  would  have  been  jus- 
tified in  attempting  to  navigate  his  vessel,  if  he  could  avoid  doing 
so.  After  the  discharge  of  the  cargo  the  Reynolds  signaled  for  a 
tug  to  tow  her  from  the  dock,  but  none  could  be  obtained  because  of 
the  severity  of  the  storm.  If  the  lines  holding  the  ship  to  the  dock 
had  been  cast  off,  she  would  doubtless  have  drifted  away;  but,  in- 
stead, the  lines  were  kept  fast,  and  as  soon  as  one  parted  or  chafed 
it  was  replaced,  sometimes  with  a  larger  one.  The  vessel  lay  upon 
the  outside  of  the  dock,  her  bow  to  the  east,  the  wind  and  waves 
striking  her  starboard  quarter  with  such  force  that  she  was  constantly 
being  lifted  and  thrown  against  the  dock,  resulting  in  its  damage,  as 
found  by  the  jury,  to  the  amount  of  $500. 

We  are  satisfied  that  the  character  of  the  storm  was  such  that  it 
would  have  been  highly  imprudent  for  the  master  of  the  Reynolds  to 
have  attempted  to  leave  the  dock  or  to  have  permitted  his  vessel  to 
drift  away  from  it.  One  witness  testified  upon  the  tri^l  that  the  vessel 
could  have  been  warped  into  a  slip,  and  that,  if  the  attempt  to  bring 
the  ship  into  the  slip  had  failed,  the  worst  that  couM  have  happened 
would  be  that  the  vessel  would  have  been  blown  ashore  upon  a  soft 
and  muddy  bank.  The  witness  was  not  present  in  Duluth  at  the  time 
of  the  storm,  and,  while  he  may  have  been  right  in  his  conclusions, 
those  in  charge  of  the  dock  and  the  vessel  at  the  time  of  the  storm 
were  not  required  to  use  the  highest  human  intelligence,  nor  were 
they  required  to  resort  to  every  possible  experiment  which  could  be 
suggested  for  the  preservation  of  their  property.  Nothing  more  was 
demanded  of  them  than  ordinary  prudence  and  care,  and  the  record 
in  this  case  fully  sustains  the  contention  of  the  appellant  that,  in 
holding  the  vessel  fast  to  the  dock,  those  in  charge  of  her  exercised 
good  judgment  and  prudent  seamanship. 

It  is  claimed  by  the  respondent  that  it  was  negligence  to  moor  the 
boat  at  an  exposed  part  of  the  wharf,  and  to  continue  in  tliat  position 
after  it  became  apparent  that  the  storm  was  to  be  more  than  usually 
severe.  We  do  not  agree  with  this  position.  The  part  of  the  wharf 
where  the  vessel  was  moored  appears  to  have  been  commonly  used 
for  that  purpose.  It  was  situated  within  the  harbor  at  Duluth,  and 
must,  we  think,  be  considered  a  proper  and  safe  place,  and  would 
undoubtedly  have  been  such  during  what  would  be  considered  a  very 
severe  storm.  The  storm  which  made  it  unsafe  was  one  which  sur- 
passed in  violence  any  which  might  have  reasonably  been  anticipated. 

The  appellant  contends  by  ample  assignments  of  error  that,  because 
its  conduct  during  the  storm  was  rendered  necessary  by  prudence  and 
good  seamanship  under  conditions  over  which  it  had  no  control,  it 
cannot  be  held  lial)le  for  any  injury  resulting  to  the  property  of  others, 
and  claims  that  the  jury  should  have  been  so  instructed.  An  analysis 
of  the  charge  given  by  the  trial  court  is  not  necessary,  as  in  our  opinion 


614  VINCENT   V.    LAKE   ERIE   TRANSPORTATION   CO.       [CHAP.  V. 

the  only  question  for  the  jury  was  the  amount  of  damages  which  the 
plaintiffs  iVere  entitled  to  recover,  and  no  complaint  is  made  upon 
that  score. 

The  situation  was  one  in  which  the  ordinary  rules  regulating  prop- 
erty rights  were  suspended  by  forces  beyond  human  control,  and  if, 
without  the  direct  intervention  of  some  act  by  the  one  sought  to  l)e 
held  liable,  the  property  of  another  was  injured,  such  injury  must 
be  attributed  to  the  act  of  God,  and  not  to  the  wrongful  act  of  the 
person  sought  to  be  charged.  If  during  the  storm  the  Reynolds  had 
entered  the  harbor,  and  while  there  had  become  disabled  and  been 
thrown  against  the  plaintiffs'  dock,  the  plaintiffs  could  not  have  recov- 
ered. Again,  if  while  attempting  to  hold  fast  to  the  dock  the  lines 
had  parted,  without  any  negligence,  and  the  vessel  carried  against 
some  other  boat  or  dock  in  the  harbor,  there  would  be  no  liability  upon 
her  owner.  But  here  those  in  charge  of  the  vessel  deliberately  and  by 
their  direct  efforts  held  her  in  such  a  position  that  the  damage  to  the 
dock  resulted,  and,  having  thus  preserved  the  ship  at  the  expense 
of  the  dock,  it  seems  to  us  that  her  owners  are  responsible  to  the  dock 
owners  to  the  extent  of  the  injury  inflicted. 

In  Dupee  v.  Flatau,  100  Minn.  299,  111  N.  W.  1,  8  L.  R.  A  (N. 
S.)  485,  this  court  held  that  where  the  plaintiff,  while  lawfully  in 
the  defendants'  house,  became  so  ill  that  he  was  incapable  of  traveling 
with  safety,  the  defendants  were  responsible  to  him  in  damages  for 
compelling  him  to  leave  the  premises.  If,  however,  the  owner  of  the 
premises  had  furnished  the  traveler  with  proper  accommodations  and 
medical  attendance,  would  he  have  been  able  to  defeat  an  action 
brought  against  him  for  their  reasonable  worth? 

In  Ploof  V.  Putnam  (Vt.)  71  Atl.  188,  20  L.  R.  A.  (N.  S.)  152, 
the  Supreme  Court  of  Vermont  held  that  where,  under  stress  of 
weather,  a  vessel  was  without  permission  moored  to  a  private  dock  at 
an  island  in  Lake  Champlain  owned  by  the  defendant,  the  plaintiff  was 
not  guilty  of  trespass,  and  that  the  defendant  was  responsible  in  dam- 
ages because  his  representative  upon  the  island  unmoored  the  vessel, 
permitting  it  to  drift  upon  the  shore,  with  resultant  injuries  to  it. 
If,  in  that  case,  the  vessel  had'been  permitted  to  remain,  and  the  dock 
had  suffered  an  injury,  we  believe  the  shipowner  would  have  been 
held  liable  for  the  injury  done. 

Theologians  hold  that  a  starving  man  may,  without  moral  guilt, 
take  what  is  necessary  to  sustain  life;  l)ut  it  could  hardly  be  said 
that  the  ol)ligation  would  not  be  upon  such  person  to  pay  the  value  of 
the  property  so  taken  when  he  became  able  to  do  so.  And  so  public 
necessity,  in  times  of  war  or  peace,  may  require  the  taking  of  private 
property  for  public  purposes;  but  under  our  system  of  jurisprudence 
compensation  must  be  made. 

Let  us  imagine  in  this  case  that  for  the  better  mooring  of  the  vessel 
those  in  charge  of  her  had  appropriated  a  valuable  cable  lying  upon 


SECT.  III.]      VINCENT   V.   LAKE    ERIE    TRANSPORTATION   CO.  615 

the  dock.  No  matter  how  justifiable  such  appropriation  might  have 
been,  it  would  not  be  claimed  that,  because  of  the  overwhelming  neces- 
sity of  the  situation,  the  owner  of  the  cable  could  not  recover  its  value. 

This  is  not  a  case  where  life  or  property  was  menaced  by  any  object 
or  thing  belonging  to  the  plaintiffs,  the  destruction  of  which  became 
necessary  to  prevent  the  threatened  disaster.  Nor  is  it  a  case  where, 
because  of  the  act  of  God,  or  unavoidable  accident,  the  infliction  of 
the  injury  was  beyond  the  control  of  the  defendant,  but  is  one  where 
the  defendant  prudently  and  advisedly  availed  itself  of  the  plaintiffs' 
property  for  the  purpose  of  preserving  its  own  more  valuable  prop- 
erty, and  the  plaintiffs  are  entitled  to  compensation  for  the  injury 
done. 

Order  affirmed. 

Lewis,  J.  (dissenting).  I  dissent.  It  was  assumed  on  the  trial 
before  the  lower  court  that  appellant's  liability  depended  on  whether 
the  master  of  the  ship  might,  in  the  exercise  of  reasonable  care,  have 
sought  a  place  of  safety  before  the  storm  made  it  impossible  to  leave 
the  dock.  The  majority  opinion  assumes  that  the  evidence  is  con- 
clusive that  appellant  moored  its  boat  at  respondents'  dock  pursuant 
to  contract,  and  that  the  vessel  was  lawfully  in  position  at  the  time  the 
additional  cables  were  fastened  to  the  dock,  and  the  reasoning  of  the 
opinion  is  that,  because  appellant  made  use  of  the  stronger  cables  to 
hold  the  boat  in  position,  it  became  liable  under  the  rule  that  it  had 
voluntarily  made  use  of  the  property  of  another  for  the  purpose  of 
saving  its  own. 

In  my  judgment,  if  the  boat  was  lawfully  in  position  at  the  time 
the  storm  broke,  and  the  master  could  not,  in  the  exercise  of  due  care, 
have  left  that  position  without  subjecting  his  vessel  to  the  hazards  of 
the  storm,  then  the  damage  to  the  dock,  caused  by  the  pounding  of  the 
boat,  was  the  result  of  an  inevitable  accident.  If  the  master  was 
in  the  exercise  of  due  care,  he  was  not  at  fault.  The  reasoning  of  the 
opinion  admits  that  if  the  ropes,  or  cables,  first  attached  to  the  dock 
had  not  parted,  or  if,  in  the  first  instance,  the  master  had  used  the 
stronger  cables,  there  would  be  no  liability.  If  the  master  could  not, 
in  the  exercise  of  reasonable  care,  have  anticipated  the  severity  of  the 
storm  and  sought  a  place  of  safety  before  it  became  impossible,  why 
should  he  be  required  to  anticipate  the  severity  of  the  storm,  and,  in 
the  first  instance,  use  the  stronger  cables? 

I  am  of  the  opinion  that  one  who  constructs  a  dock  to  the  navi- 
gable line  of  waters,  and  enters  into  contractual  relations  with  the 
owner  of  a  vessel  to  moor  the  same,  takes  the  risk  of  damage  to  his 
dock  by  a  boat  caught  there  by  a  storm,  which  event  could  not  have 
been  avoided  in  the  exercise  of  due  care,  and  further,  that  the  legal 
status  of  the  parties  in  such  a  case  is  not  changed  by  renewal  of  cables 
to  keep  the  boat  from  being  cast  adrift  at  the  mercy  of  the  tempest. 

Jaggard,  J.     I  concur  with  Lewis,  J. 


616  OILMAN   V.    EMERY.  [CIIAP.   V. 


OILMAN  V.  EMERY. 

Supreme  Court  of  Maine,  1867. 

[Reported  54  Me.  460.] 

On  Exceptions. 

Trespass  to  recover  damages  to  plaintiff's  horse  and  wagon. 

It  appeared  that  the  phxintift'  started  with  his  brother  to  drive  two 
heifers,  from  his  stable,  in  Waterville,  to  another  town.  As  they 
were  passing  defendant's  premises,  leading  plaintiff's  horse  attached 
to  his  wagon,  and  driving  the  heifers,  one  of  the  latter  turned  and  ran 
back.  Whereupon,  the  plaintiff'  hitched  his  horse  to  a  shade  tree, 
twenty-two  inches  in  diameter,  standing  upon  the  defendant's  prem- 
ises, but  within  the  limits  of  the  highway,  and  went  back  for  his 
heifer.  The  defendant  seeing  plaintiff's  horse  so  hitched,  removed  him 
and  hitched  him  to  a  post  a  few  feet  from  the  tree.  When  the  plain- 
tiff was  returning  for  his  horse,  some  twenty  minutes  afterwards,  he 
saw  his  horse  running  through  the  streets,  with  halter  dragging,  and 
the  wagon  broken.  There  was  no  evidence  as  to  the  precise  manner  in 
which  the  defendant  hitched  the  horse,  or  as  to  how  he  was  freed  from 
the  post. 

Plaintiff  moved  to  amend  by  adding  a  count  alleging  a  wrongful 
taking  by  the  defendant,  a  negligent  use  and  control  of  said  horse  and 
wagon,  whereby  they  became  injured  and  unfit  for  use.  The  presiding 
judge  overruled  the  motion,  and  ordered  a  nonsuit,  and  the  plaintiff 
alleged  exceptions. 

Walton,  J.  Travelers  have  no  right  to  hitch  horses  to  shade  trees. 
It  is  well  known  that  most  horses  have  a  propensity  to  gnaw  whatever 
they  are  hitched  to.  Hitching  posts  of  the  hardest  wood  have  to  be 
capped  with  iron  or  they  are  soon  so  badly  gnawed  as  to  be  ruined. 
Too  many  beautiful  shade  trees,  planted  at  great  expense  and  watched 
for  many  years  with  anxious  care,  have  been  destroyed  by  having 
horses  hitched  to  them,  not  to  know  that  the  practice  is  exceedingly 
dangerous.  W'hen,  therefore,  the  owner  of  a  shade  tree  finds  a  horse 
hitched  to  it,  he  may  immediately  remove  him  to  a  place  of  safety, 
and  such  removal  will  not  be  a  trespass. 

In  this  case  the  defendant  found  a  horse  hitched  to  one  of  his  shade 
trees.  He  unhitched  him  and  led  him  a  few  feet  and  hitched  him  to  a 
post  set  in  the  ground  on  purpose  to  hitch  horses  to.  This  was  not  an 
act  of  trespass,  and  probably  the  plaintiff'  would  not  have  complained 
of  it,  but  for  the  fact  that  his  horse  afterwards  broke  loose  from  the 
post  and  ran  away  and  broke  his  wagon.  But  there  is  no  evidence  that 
the  defendant  did  not  use  ordinary  care  in  hitching  the  horse,  and  the 
plaintiff's  writ  does  not  charge  him  with  negligence;  it  simply  charges 


SIXT.  III.]  NESBETT    V.    WILBUK.  617 

him  with  trespass  vi  et  armis,  in  taking  and  carrying  away  the  horse, 
buggy,  etc. 

The  presiding  judge,  being  of  opinion  that  the  action  could  not  be 
maintained,  ordered  a  nonsuit,  to  wliich  the  plaintiff  excepted.  We  can- 
not doubt  that  the  nonsuit  was  rightly  ordered. 

The  plaintiff  moved  for  leave  to  amend  his  declaration  by  insert- 
ing a  new  count  charging  the  defendant  with  negligence  in  not  hitch- 
ing the  horse  securely.  Leave  was  not  granted.  To  this  refusal  the 
plaintiff  also  excepted.  Exceptions  do  not  lie  to  the  refusal  of  a 
judge  to  allow  an  amendment,  unless  the  l)ill  of  exceptions  show  that 
he  ruled,  as  matter  of  law,  that  the  proposed  amendment  was  one 
which  could  not  be  allowed.  The  bill  of  exceptions  does  not  show  that 
he  so  ruled  in  this  case.  It  is  to  be  presumed  therefore  that  he  ruled, 
as  matter  of  discretion,  not  to  allow  the  amendment,  because  under 
the  circumstances  justice  would  not  in  his  opinion  be  thereby  promoted. 
To  such  a  ruling,  as  before  stated,  exceptions  do  not  lie;  and  it  is  not 
important  to  determine  whether  the  proposed  amendment  was  one 
which  could  legally  be  made  or  not. 

Exceptions  overruled. 

Appleton,  C.  J.,  Cutting,  Dickerson,  Barrows,  and  Tapley, 
JJ.,  concurred. 


NESBETT  V.   WILBUR. 
Supreme  Judicial  Court  of  Massachusetts,  1900. 

[Reported  111  Mass.  200.] 

Holmes,  C.  J.  This  is  an  action  for  killing  a  dog.  The  judge  before 
whom  the  case  was  tried  found  that  the  dog  was  engaged  in  killing  the 
defendant's  hens,  that  the  defendant  rightly  believed  that  there  was 
no  other  way  to  save  them  than  to  kill  the  dog,  and  that  he  was  justified 
in  doing  so.  The  plaintiff  excepted  to  a  refusal  to  rule  that  our  stat- 
utes took  away  the  common  law,  and  that,  not  having  complied  with 
the  statutes,  the  defendant  was  liable. 

The  provision  in  Pub.  Sts.  c.  102,  §  94,  does  not  take  away  the  rights 
of  the  defendant  at  common  law.  That  section  gives  a  right  to  "any 
person"  to  kill  a  dog  foimd  out  of  the  inclosure  or  immediate  care  of 
its  owner,  worrying  neat  cattle,  sheep,  or  lambs.  Its  object  is  "to 
rid  society  of  a  nuisance  by  killing  the  dog."  Cummings  v.  Perham,  1 
Met.  555,  557.  Blair  v.  Forehand,  100  Mass.  136,  143.  It  does  not 
touch  the  rights  of  an  owner  in  defense  of  his  property.  Our  legis- 
lation as  a  whole  discloses  no  scheme  of  a  nature  to  exclude  those 
rights. 


618  EX  PARTE  MINOR.  [cHAP.  V. 

Taken  strictly,  the  exceptions  do  not  open  a  question  concerning  the 
common  law,  nor  is  one  argued.  We  need  say  no  more  than  that  the 
finding  for  the  defendant  was  justified.  No  doubt  such  a  justification 
as  that  relied  on  depends  upon  a  number  of  variable  facts:  the  immi- 
nence and  nature  of  the  danger,  the  kind  of  property  in  peril,  from 
whom  or  what  the  danger  proceeds,  the  relative  importance  of  the 
harm  threatened  and  that  which  is  done  in  defense.  Compare,  for 
instance,  Clark  v.  Keliher,  107  Mass.  406,  with  the  cases  cited  below. 
But  these  considerations  and  comparisons  are  all  eliminated  by  the 
judge's  finding  that  the  defendant  was  justified.  There  is  nothing 
which  enables  us  to  say  or  leads  us  to  think  that  he  was  wrong.  Wad- 
hurst  V.  Damme,  Cro.  Jac.  45.  Wright  v.  Ramscot,  1  Wms.  Saund.  84. 
Barrington  v.  Turner,  3  Lev.  28.  Janson  v.  Brown,  1  Camp.  41.  Liver- 
more  V.  Batchelder,  141  Mass.  179.  Leonard  v.  Wilkins,  9  Johns.  233. 
Brill  V.  Flagler,  23  Wend.  354.  Aldrich  v.  Wright,  53  N.  H.  398.  Hub- 
bard V.  Preston,  90  Mich.  221. 

Exceptions  overruled. 

EX  PARTE  MINOR. 
Supreme  Court  of  Alabama,  1919. 

[Rsported  8.3  So.  Rep.  475.] 

Action  by  Phillip  B.  Minor  against  Thomas  W.  Coleman  for  damages 
for  killing  a  dog.  The  Court  of  Appeals  reversed  a  judgment  for  the 
plaintiff,  and  the  plaintiff  petitions  for  certiorari. 

Plea  4  was  as  follows: 

Comes  the  defendant,  and  for  a  further  plea  to  plaintiff's  com- 
plaint as  amended  and  separately  to  each  count  thereof  says  that  when 
plaintiff's  dog  was  shot  by  Jim  Ward  the  dog  was  on  defendant's 
premises  and  was  in  full  pursuit  of  defendant's  guineas,  and  that  it 
was  necessary,  or  appeared  to  be  so  to  a  reasonable  man,  to  kill  the 
dog  to  save  the  life  of  the  guinea  or  from  serious  bodily  harm. 

The  plaintiff  demurred  to  this  plea.' 

SoMERViLLE,  J.  We  agree  with  the  holding  of  the  Court  of  Appeals 
that  the  defendant's  fourth  plea  was  not  subject  to  the  grounds  of 
demurrer  interposed,  and  that  its  elimination  by  the  trial  court  on  de- 
murrer was  erroneous. 

The  relative  values  of  the  dog  that  was  killed  and  the  guinea  fowls 
to  be  protected  by  his  killing  has  been  held  to  be  "  a  proper  circumstance 
for  the  jury  to  consider  in  arri^^ng  at  a  conclusion  whether  the  defense 
was  a  reasonable  one  under  the  circumstances."  Kershaw  r.  McKown, 
196  Ala.  123,  72  South.  47.  But  there  is  no  rule  of  law  that  the  defense 
against  liability  for  killing  the  dog  must  have  been  based  upon  a  show- 
ing that  the  fowls  thus  protected  were  in  value  equal  to  or  not  greatly 
less  than  the  value  of  the  dog.     Kershaw  v.  McKowii,  supra.     That 

1  This  statement  of  facts  is  abridged. 


SECT.   III.]  GOODWIN  V.   AVERY.  619 

question  is  comprehended  in  the  issue  of  reasonable  necessity  for  the 
killing,  and  need  not  be  alleged  in  the  plea. 

But  we  think  an  important  limitation  upon  the  rule  must  be  ob- 
served, viz.,  that  the  jury  must  have  regard  for  relative  values  as  they 
reasonably  appeared  at  the  time  to  the  defendant.  Certainly  he  could 
not  be  convicted  of  an  unreasonable  defense  of  his  poultry  because  of 
valuable  qualities  in  the  trespassing  dog,  Avhether  of  pedigree  or  train- 
ing, not  apparent  to  the  ol)servation  of  a  man  of  ordinary  intelligence, 
and  not  ordinarily  inherent  in  dogs  of  a  similar  appearance.  .  .  . 

If  the  consideration  by  the  jury  of  relative  values,  as  affecting  the 
reasonableness  of  the  killing,  in  such  cases  as  this,  had  not  already  been 
approved  by  this  court,  the  writer  would  be  inclined  to  the  view  that 
the  owner  of  domestic  animals  or  poultry  kept  by  him  upon  his  omti 
premises  may  lawfully  slay  any  trespassing  animal  if  that  be  necessary 
to  preserve  his  own,  and  that  his  right  to  do  so  cannot  be  qualified  by 
any  consideration  of  comparative  values.  See  the  very  able  and  in- 
teresting discussion  of  the  subject  by  Doe,  J.,  in  Aldrich  v.  Wright,  53 
N.  H.  398,  16  Am.  Rep.  339.   ... 

^  Petition  denied- 


GOODWIN  V.   AVERY. 

Supreme  Court  of  Errors,  Connecticut,  1858. 

[Reported  26  Co7m.  585.] 

Trespass,  for  an  assault  and  battery,  tried  to  the  jury  on  the  general 
issue. 

The  plaintiff  and  defendant  were  hack-drivers.  A  Mr.  Prince,  in 
making  preparations  for  the  funeral  of  a  child,  had  employed  one 
Potter  to  superintend  the  arrangements  for  the  funeral  and  to  procure 
the  necessary  carriages,  and  Potter,  in  pursuance  of  his  directions,  had 
engaged  the  defendant,  among  others,  to  attend  with  his  hack.  Pre- 
vious to  the  funeral,  a  brother  of  Mr.  Prince,  without  the  knowledge  of 
Potter,  had  engaged  the  plaintiff  to  attend  the  funeral  with  his  car- 
riage. The  plaintiff  and  defendant  both  attended  with  their  carriages, 
and  the  injuries  which  the  plaintiff  claimed  to  have  received,  were  the 
consequences  of  a  strife  between  them  to  obtain  a  certain  position  in  the 
funeral  procession. 

The  defendant  offered  evidence  to  prove,  that  he  arrived  at  the 
funeral  in  his  carriage  previous  to  the  arrival  of  the  plaintiff,  and  took 
a  position  in  the  public  street  in  front  of  the  house  where  the  funeral 
was  to  be  held;  that  a  person  by  the  name  of  Licet,  the  driver  of  an- 
other carriage,  took  a  position  behind  the  defendant;  that  while  the 
defendant  and  Licet  were  thus  arranged  in  line  in  the  procession  that 
was  to  be  formed,  Potter  gave  directions  to  the  defendant  to  drive 
into  and  let  Licet  take  his  place,  and  gave  directions  to  the  defendant 


620  GOODWIN  V.   AVERY.  [CHAP.  V. 

to  take  the  place  next  behind  Licet;  that  thereupon  the  defendant 
turned  his  carriage  round  for  the  purpose,  and  while  he  was  thus  turn- 
ing, the  plaintiff  arrived  and  occupied  the  place  with  his  carriage,  — 
Potter  at  this  time  having  gone  into  the  house;  that  thereupon  the 
defendant  informed  the  plaintiff  that  Potter,  who  had  charge  of  the 
funeral  arrangements,  had  assigned  to  him  the  place  the  plaintiff  then 
occupied,  and  requested  him  to  back  his  team  and  let  him  take  the 
place;  that  the  plaintiff  refused  to  leave  the  place  or  let  the  defendant 
occupy  the  same;  that  the  defendant's  carriage  was  at  this  time  in  an 
angling  position  with  a  line  running  with  the  street,  with  the  heads  of 
his  horses  in  advance  of  the  heads  of  the  plaintiff's  horses,  and  near 
the  back  of  Licet's  carriage;  that  while  in  this  position  the  defendant 
was  standing  by  the  heads  of  his  horses,  holding  them  by  the  bits,  and 
the  plaintiff  was  sitting  in  his  carriage,  when  the  defendant  requested 
Licet,  without  the  knowledge  of  the  plaintiff,  to  drive  his  carriage  for- 
ward; that  Licet  drove  forward,  and  the  defendant  caused  his  horses 
to  move  forward  at  the  same  instant  to  occupy  the  place  left  vacant; 
that  after  his  horses  began  to  move  forward  to  occupy  the  place,  the 
plaintiff  discovered  his  design  and  began  whipping  his,  the  plaintiff's, 
horses;  that  the  plaintiff's  horses  started  forward,  and  the  defendant 
being  at  the  time  in  advance  of  them  with  his  own  horses,  the  horses 
of  the  plaintiff  struck  the  defendant,  and  the  pole  of  the  plaintiff's 
carriage  hit  him  in  the  back,  hurting  him  considerably ;  that  thereupon 
the  defendant  took  the  horses  of  the  plaintiff  by  the  bridle  to  keep 
them  from  being  driven  by  the  plaintiff  upon  him;  that  thereupon  the 
plaintiff  commenced  beating  him  with  his  whip  over  the  head  and 
shoulders,  and  that  in  order  to  protect  himself  from  the  attack  of  the 
plaintiff,  he  committed  the  acts  of  which  the  plaintiff  complained,  doing 
no  more  than  was  reasonably  necessary,  under  the  circumstances,  for 
his  self-defense.  The  plaintiff  offered  evidence  to  prove,  that  after  he 
had  occupied  the  place  behind  Licet  with  his  carriage,  and  when  the 
defendant  requested  him  to  leave  the  place  and  let  him  occupy  the 
same,  he  informed  the  defendant  that  he  would  leave  the  place  if 
Potter  should  so  direct;  and  that  when  Licet  began  to  move  his  car- 
riage forward,  he  caused  his  own  horses  to  move  forward  at  the  same 
time,  and  that  the  defendant'  thereupon  seized  his,  the  plaintiff's, 
horses  by  the  bridle  and  forced  them  back,  to  prevent  the  plaintiff  from 
occupying  the  place  left  vacant  by  Licet;  and  that  if  he  struck  the  de- 
fendant with  his  whip,  it  was  unintentional.  Potter  did  not  know  that 
the  plaintiff  had  been  engaged,  or  had  arrived  to  attend  the  funeral, 
until  after  the  affray. 

L^pon  the  various  claims  of  the  parties  the  court  charged  the  jury 
substantially  as  follows:  —  "It  seems  admitted  in  this  case  that  an 
assault  and  battery  was  committed  by  the  defendant  upon  the  plain- 
tiff, for  which  the  defendant  would  be  responsible  in  damages,  unless 
justified  upon  the  principle  of  self-detense.     In  such  cases  it  becomes 


SECT.  III.]  GOODWIN   V.   AVERY.  621 

important  to  ascertain,  if  we  can,  which  party  was  in  the  right,  and 
which  in  the  wrong,  in  the  commencement  of  the  affray.  The  parents 
of  the  deceased  child  had  the  right  to  a  reasonable  occupancy  of  the 
public  street  in  front  of  their  house,  for  the  purpose  of  forming  the 
funeral  procession  of  their  child.  The  use  and  occupancy  of  the  car- 
riages they  had  employed  being  theirs  for  the  occasion,  they  conse- 
quently had  the  right  to  direct  in  what  order  those  carriages  should  be 
placed  in  the  procession;  and  the  drivers  of  the  carriages,  being  them- 
selves in  their  employ,  were  under  obligations  to  conform  to  their 
directions.  The  parents,  having  thus  the  control  of  the  carriages  they 
had  employed,  might  engage  the  ser^'ices  of  another  (as  is  usual  on 
such  occasions),  to  make  those  directions  for  them;  and  the  directions 
of  the  person  thus  employed  would  be  considered  as  the  directions  of 
the  parents.  It  is  admitted  in  this  case  that  Potter  was  thus  employed, 
and  the  fact  was  know^n  by  the  plaintiff  and  the  defendant  previously 
to  the  affray.  You  will  then  inquire,  in  the  first  place,  whether  Potter 
had  directed  the  defendant  to  take  the  place  in  the  procession  next 
after  Licet.  If  he  had  so  directed,  and  the  defendant  informed  the 
plaintiff  to  that  effect,  it  was  the  duty  of  the  plaintiff  to  have  allowed 
the  defendant  to  occupy  the  place;  and  when  Licet  moved  his  carriage 
forward,  and  the  defendant  proceeded  to  occupy  the  place  thus  left 
vacant,  if  the  plaintiff  drove  his  carriage  forward  to  prevent  the  defend- 
ant from  thus  occupying  the  place,  he  was  in  the  wrong,  and  I  think 
the  defendant  would  be  justified  in  gently  taking  the  horses  of  the 
plaintiif  by  the  bridle  and  stopping  them,  if  he  did  no  more;  and  if  the 
plaintiff  then  proceeded  to  inflict  an  assault  and  battery  upon  the  de- 
fendant, the  defendant  might  repel  the  assault,  doing  no  more  than  was 
reasonably  necessary,  under  the  circumstances,  to  defend  himself.  If 
the  defendant  carried  his  defense  further  than  was  reasonably  neces- 
sary under  the  circumstances,  he  would  be  liable  for  the  excess.  If 
you  find  that  Potter  had  not  directed  the  defendant  to  occupy  the  place 
next  l)ehind  Licet,  then,  in  order  to  ascertain  which  party  was  in  the 
wrong  in  the  commencement  of  the  affray,  you  will  consider  which  party 
first  proceeded  to  \'iolence.  Under  ordinary  circumstances  the  right 
of  one  person  to  the  public  highway,  for  public  highway  purposes,  is  as 
good  as  that  of  another.  The  highway  is  for  the  public  —  for  one  and 
all.  But  when  one  person  occupies  a  particular  part  of  the  highway 
for  highway  purposes,  he  has  an  exclusive  right  to  that  part  of  the 
highway  a  reasonable  length  of  time,  under  all  the  circumstances. 
Again,  under  ordinary  circumstances,  if  two  persons  in  carriages  seek 
to  occupy  a  part  of  the  highway  which,  as  yet,  is  unoccupied  by  either, 
the  party  who  can  peaceably  occupy  the  place  first,  will  be  entitled  to 
it  for  the  time  being;  but  he  would  not  be  justified  in  resorting  to  vio- 
lence, either  upon  the  person  or  property  of  the  other,  in  order  to  occupy 
the  place  first.  The  one  would  not  be  justified  in  dri\-ing  his  horses 
upon  the  other,  in  order  to  occupy  the  place  first;    neither  would  the 


622  GOODWIN  V.   AVERY.  [cHAP.  V. 

Other  be  justified  in  seizing  the  horses  of  the  first  and  forcing  them 

back  for  the  same  purpose.    The  party,  under  such  circumstances,  who 

first  resorted  to  force  and  violence,  would  be  in  the  wrong,  and  that  ■ 

violence  might  be  lawfully  resisted  by  the  other,  doing  no  more  than  ^ 

was  reasonably  necessary,  under  the  circumstances,  to  defend  himself; 

while  the  other,  being  in  the  wrong,  would  be  responsible  in  damages  for 

whatever  injury  he  might  occasion,  while  his  adversary  kept  within 

the  proper  limits  of  self-defense." 

The  jury  returned  a  verdict  for  the  defendant,  and  the  plaintiff 
moved  for  a  new  trial  for  error  in  the  charge  of  the  court. 

Stores,  C.  J.  No  complaint  is  made  of  the  latter  part  of  the  charge 
below,  which  was  founded  on  the  supposition  that,  at  the  time  of  the 
affray  between  the  parties,  the  part  of  the  highway  where  it  occurred 
was  not  in  the  occupation  of  any  person,  and  that  the  parties  were 
struggling  for  the  possession  of  it.  The  argument  before  us  has  pro- 
ceeded on  the  assumption  that  Mr.  Prince  was  then,  by  his  servants, 
the  drivers  of  the  carriages  who  were  engaged  by  him  to  attend  the 
funeral  of  his  child,  in  the  occupancy  of  the  place,  for  the  purpose  of 
forming  the  procession  on  that  occasion;  and  that  the  order  in  which 
the  carriages  should  be  formed  in  the  procession  was  by  him  confided  to 
Mr.  Potter,  who,  it  is  admitted,  became  thereby  his  agent  for  that 
purpose,  and  whose  directions  in  respect  to  it  were  therefore  in  law 
those  of  Mr.  Prince  himself.  The  latter  being  thus  in  the  possession  of 
that  part  of  the  highway,  for  what  was  clearly  a  lawful  purpose,  had  a 
right,  either  personally  or  through  Mr.  Potter,  to  direct  as  to  the 
places  in  the  procession  which  the  carriages  engaged  by  him  should 
occupy,  and  the  drivers  therefore  had  a  right  to  follow  those  directions; 
and  if,  in  conforming  or  endeavoring  to  conform  to  them,  they  were 
prevented  from  doing  so  or  obstructed  by  the  plaintiff  (who  was  not  in 
the  employ  of  Mr.  Prince  or  acting  by  his  direction,  and  therefore  had 
no  right  to  interfere  with  him  or  his  servants  in  these  funeral  arrange- 
ments), they  had  a  right  to  oppose  such  acts  of  the  plaintiff,  or  to  de- 
fend themselves  against  any  injury  from  him,  by  as  much  force  as  was 
necessary  in  order  to  enable  themselves  to  occupy  the  place  in  the  pro- 
cession assigned  to  them.  The  proper  inquiries  on  this  part  of  the 
case,  were  —  first,  whether  the  defendant  was  directed  by  Potter  to 
occupy  the  place,  and  was,  while  occupying  or  endeavoring  to  occupy 
it,  obstructed  by  the  plaintiff,  —  and  secondly,  if  he  was  so  disturbed, 
whether  he  used  unnecessary  force  in  obtaining  or  keeping  the  place. 
And  these  questions  were  submitted  by  the  court  below,  and  with 
great  clearness,  to  the  jury.  In  one  respect,  perhaps,  the  charge  was 
over-favorable  to  the  plaintiff.  It  required  the  defendant  to  prove, 
not  only  that  Potter  had  directed  the  defendant  to  occupy  the  place 
for  which  the  parties  were  struggling,  but  also  that  the  defendant  had 
informed  the  plaintiff  to  that  effect.  It  is  questionable  whether  the 
plaintiff  had  strictly  any  right  to  such  information  from  the  defendant; 


SECT.   IV.]  BROWN  V.   KENDALL.  623 

for  if  the  latter  had,  by  Potter's  directions,  a  right  to  take  that  place, 
it  would  seem  that  he  could  not  lawfully  be  deprived  of  it  by  the  plain- 
tiff, whether  it  was  made  known  to  him  by  the  defendant  or  not.  This 
point,  however,  has  not  been  made,  and  it  is  unnecessary  to  notice  it 
further.  We  discover  no  error  in  the  charge  of  which  the  plaintiff  can 
complain,  and  therefore  do  not  advise  a  new  trial. 
In  this  opinion  the  other  judges  concurred. 

New  trial  not  advised. 


SECTION   IV. 

Protection  from  Consequences  of  Permitted  Acts. 

BROWN  v.   KENDALL. 
Supreme  Judicial  Court,  1850. 

[Reported  6  Ciish.  292.] 

This  was  an  action  of  trespass  for  assault  and  battery,  originally 
commenced  against  George  K.  Kendall,  the  defendant,  who  died  pend- 
ing the  suit,  and  his  executrix  was  summoned  in. 

It  appeared  in  evidence,  on  the  trial,  which  was  before  Wells,  C.  J., 
in  the  court  of  common  pleas,  that  two  dogs,  belonging  to  the  plaintiff 
and  the  defendant,  respectively,  were  fighting  in  the  presence  of  their 
masters;  that  the  defendant  took  a  stick  about  four  feet  long,  and  com- 
menced beating  the  dogs  in  order  to  separate  them;  that  the  plaintiff 
was  looking  on,  at  the  distance  of  about  a  rod,  and  that  he  advanced  a 
step  or  two  towards  the  dogs.  In  their  struggle,  the  dogs  approached  the 
place  where  the  plaintiff  was  standing.  The  defendant  retreated  back- 
wards from  before  the  dogs,  striking  them  as  he  retreated;  and  as  he 
approached  the  plaintiff,  with  his  back  towards  him,  in  raising  his 
stick  over  his  shoulder,  in  order  to  strike  the  dogs,  he  accidentally  hit 
the  plaintiff  in  the  eye,  inflicting  upon  him  a  severe  injury. 

Whether  it  was  necessary  or  proper  for  the  defendant  to  interfere  in 
the  fight  between  the  dogs ;  whether  the  interference,  if  called  for,  was 
in  a  proper  manner,  and  what  degree  of  care  was  exercised  by  each 
party  on  the  occasion;  were  the  subject  of  controversy  between  the 
parties,  upon  all  the  evidence  in  the  case,  of  which  the  foregoing  is  an 
outline. 

The  defendant  requested  the  judge  to  instruct  the  jury,  that  "if 
both  the  plaintiff  and  defendant  at  the  time  of  the  blow  were  using 
ordinary  care,  or  if  at  that  time  the  defendant  was  using  ordinary 
care  and  the  plaintiff  was  not,  or  if  at  that  time  both  plaintiff  and 


624  BROWN   v.    KEXDALL.  [cHAP.  V. 

defendant  were  not  using  ordinary  care,  then  the  plaintiff  could  not 
recover." 

The  defendant  further  requested  the  judge  to  instruct  the  jury, 
that,  "  under  the  circumstances,  if  the  plaintiff  was  using  ordinary  care 
and  the  defendant  was  not,  the  plaintiff  could  not  recoA'er,  and  that  the 
burden  of  proof  on  all  these  propositions  was  on  the  plaintiff." 

The  judge  declined  to  give  the  instructions,  as  above  requested,  but 
left  the  case  to  the  jury  under  the  following  instructions:  "If  the  de- 
fendant, in  beating  the  dogs,  was  doing  a  necessary  act,  or  one  which 
it  was  his  duty  under  the  circumstances  of  the  case  to  do,  and  was  doing 
it  in  a  proper  way;  then  he  was  not  responsible  in  this  action,  provided 
he  was  using  ordinary  care  at  the  time  of  the  blow.  If  it  was  not  a 
necessary  act;  if  he  was  ndt  in  duty  bound  to  attempt  to  part  the  dogs, 
but  might  with  propriety  interfere  or  not  as  he  chose;  the  defendant 
was  responsible  for  the  consequences  of  the  blow,  unless  it  appeared 
that  he  was  in  the  exercise  of  extraordinary  care,  so  that  the  accident 
was  inevitable,  using  the  word  inevitable  not  in  a  strict  but  a  popular 
sense." 

"  If,  however,  the  plaintiff,  when  he  met  with  the  injury,  was  not  in 
the  exercise  of  ordinary  care,  he  cannot  recover,  and  this  rule  applies, 
whether  the  interference  of  the  defendant  in  the  fight  of  the  dogs  v.^as 
necessary  or  not.  If  the  jury  belicA'c,  that  it  was  the  duty  of  the  de- 
fendant to  interfere,  then  the  burden  of  proving  negligence  on  the  part 
of  the  defendant,  and  ordinary  care  on  the  part  of  the  plaintiff,  is  on 
the  plaintiff.  If  the  jury  believe,  that  the  act  of  interference  in  the 
fight  was  unnecessary,  then  the  burden  of  proving  extraordinary  care 
on  the  part  of  the  defendant,  or  want  of  ordinary  care  on  the  part  of 
the  plaintiff,  is  on  defendant." 

The  jury  imder  these  instructions  returned  a  verdict  for  the  plain- 
tiff;  whereupon  the  defendant  alleged  exceptions. 

Shaw,  C.  J.  This  is  an  action  of  trespass,  ri  et  armis,  brought  by 
George  Brown  against  George  K.  Kendall,  for  an  assault  and  battery; 
and  the  original  defendant  having  died  pending  the  action,  his  execu- 
trix has  been  summoned  in.  The  rule  of  the  common  law,  by  which 
this  action  would  al)ate  by  the  death  of  either  party,  is  reversed  in  this 
commonwealth  by  statute,  which  provides  that  actions  of  trespass  for 
assault  and  battery  shall  sur\'ive.    Rev.  Sts.  c.  93,  §  7. 

The  facts  set  forth  in  the  bill  of  exceptions  preclude  the  supposi- 
tion, that  the  blow,  inflicted  by  the  hand  of  the  defendant  upon  the 
person  of  the  plaintiff,  was  intentional.  The  whole  case  proceeds  on 
the  assumption,  that  the  damage  sustained  by  the  plaintiff,  from  the 
stick  held  by  the  defendant,  was  inad\ertent  and  unintentional;  and 
the  case  involves  the  question  how  far,  and  under  what  qualifications, 
the  party  by  whose  unconscious  act  the  damage  was  done  is  responsible 
for  it.  We  use  the  term  "unintentional"  rather  than  involuntary,  be- 
cause in  some  of  the  cases,  it  is  stated,  that  the  act  of  holding  and  using 


SECT.   IV.]       '  BROWX  V.   KEXDALL.  625 

a  weapon  or  instrument,  the  movement  of  which  is  the  immediate  cause 
of  hurt  to  another,  is  a  voluntary  act,  although  its  particular  effect  in 
hitting  and  hurting  another  is  not  within  the  purpose  or  intention  of 
the  party  doing  the  act. 

It  appears  to  us,  that  some  of  the  confusion  in  the  cases  on  this  sub- 
ject has  grown  out  of  the  long-vexed  question,  under  the  rule  of  the 
common  law,  whether  a  party's  remedy,  where  he  has  one,  should  be 
sought  in  an  action  of  the  case,  or  of  trespass.  This  is  very  distinguish- 
able from  the  question,  whether  in  a  given  case,  any  action  will  lie. 
The  result  of  these  cases  is,  that  if  the  damage  complained  of  is  the 
immediate  effect  of  the  act  of  the  defendant,  trespass  vi  rt  armis  lies; 
if  consequential  only,  and  not  immediate,  case  is  the  proper  remedy. 
Leame  v.  Bray,  3  East,  593;  Hugget  v.  Montgomery,  2  X.  R.  446,  Day's 
Ed.  and  notes. 

In  these  discussions,  it  is  frequently  stated  by  judges,  that  when  one 
receives  injury  from  the  direct  act  of  another,  trespass  will  lie.  But 
we  think  this  is  said  in  reference  to  the  question,  whether  trespass  and 
not  case  will  lie,  assuming  that  the  facts  are  such,  that  some  action  will 
lie.  These  dicta  are  no  authority,  we  think,  for  holding,  that  damage 
received  by  a  direct  act  of  force  from  another  will  be  sufficient  to  main- 
tain an  action  of  trespass,  whether  the  act  was  lawful  or  unlawful,  and 
neither  wilful,  intentional,  or  careless.  In  the  principal  case  cited, 
Leame  v.  Bray,  the  damage  arose  from  the  act  of  the  defendant,  in 
dri\ang  on  the  wrong  side  of  the  road,  in  a  dark  night,  which  was 
clearly  negligent  if  not  unlawful.  In  the  course  of  the  argument  of 
that  case  (p.  595),  Lawrence,  J.,  said:  "There  certainly  are  cases  in 
the  books,  where,  the  injury  being  direct  and  immediate,  trespass  has 
been  holden  to  lie,  though  the  injury  was  not  intentional."  The  term 
"injury"  implies  something  more  than  damage;  but,  independently  of 
that  consideration,  the  proposition  may  be  true,  because  though  the 
injury  was  unintentional,  the  act  may  have  been  unlawful  or  negli- 
gent, and  the  cases  cited  by  him  are  perfectly  consistent  with  that  sup- 
position. So  the  same  learned  judge  in  the  same  case  says  (p.  597), 
"No  doubt  tre'spass  lies  against  one  who  drives  a  carriage  against  an- 
other, whether  done  wilfully  or  not."  But  he  immediately  adds,  "  Sup- 
pose one  who  is  driWng  a  carriage  is  negligently  and  heedlessly  looking 
about  him,  without  attending  to  the  road  when  persons  are  passing, 
and  thereby  runs  over  a  child  and  kills  him,  is  it  not  manslaughter? 
and  if  so,  it  must  be  trespass;  for  every  manslaughter  includes  tres- 
pass;"  showing  what  he  understood  by  a  case  not  wilful. 

We  think,  as  the  result  of  all  the  authorities,  the  rule  is  correctly 
stated  by  Mr.  Greenleaf,  that  the  plaintiff  must  come  prepared  with 
evidence  to  show  either  that  the  iutrntion  was  unlawful,  or  that  the 
defendant  was  in  fault:  for  if  the  injury  was  unavoidable,  and  the  con- 
duct of  the  defendant  was  free  from  blame,  he  will  not  be  liable.  2 
Greenl.  Ev.,  §§  85  to  92;   Wakeman  v.  Robinson,  1  Bing.  213.     If.  in 


626  BROWN  V.   KENDALL.  [cHAP.  V. 

the  prosecution  of  a  lawful  act,  a  casualty  purely  accidental  arises,  no 
action  can  be  supported  for  an  injury  arising  therefrom.  Davis  v. 
Saunders,  2  Chit.  R.  639;  Com.  Dig.  Battery,  A  (Day's  Ed.)  and  notes; 
^'incent  v.  Stinehour,  7  Verm.  69.  In  applying  these  rules  to  the 
present  case,  we  can  perceive  no  reason  why  the  instructions  asked 
for  by  the  defendant  ought  not  to  have  been  given;  to  this  effect,  that 
if  both  plaintiff  and  defendant  at  the  time  of  the  blow  were  using  ordi- 
nary care,  or  if  at  that  time  the  defendant  was  using  ordinary  care, 
and  the  plaintiff  was  not,  or  if  at  that  time,  both  the  plaintiff  and 
defendant  were  not  using  ordinary  care,  then  the  plaintiff  could  not 
recover. 

In  using  this  term,  ordinary  care,  it  may  be  proper  to  state,  that 
what  constitutes  ordinary  care  will  vary  with  the  circumstances  of 
Cases.  In  general,  it  means  that  kind  and  degree  of  care,  which  pru- 
dent and  cautious  men  would  use,  such  as  is  required  by  the  exigency 
of  the  case,  and  such  as  is  necessary  to  guard  against  probable  danger. 
A  man,  who  should  have  occasion  to  discharge  a  gun,  on  an  open  and 
extensive  marsh,  or  in  a  forest,  would  be  required  to  use  less  circum- 
spection and  care,  than  if  he  were  to  do  the  same  thing  in  an  in- 
habited town,  village,  or  city.  To  make  an  accident,  or  casualty,  or 
as  the  law  sometimes  states  it,  inevitable  accident,  it  must  be  such  an 
accident  as  the  defendant  could  not  have  avoided  by  the  use  of  the 
kind  and  degree  of  care  necessary  to  the  exigency,  and  in  the  circum- 
stances in  which  he  was  placed. 

We  are  not  aware  of  any  circumstances  in  this  case,  requiring  a  dis- 
tinction between  acts  which  it  was  lawful  and  proper  to  do,  and  acts 
of  legal  duty.  There  are  cases,  undoubtedly,  in  which  officers  are 
bound  to  act  under  process,  for  the  legality  of  which  they  are  not  re- 
sponsible, and  perhaps  some  others  in  which  this  distinction  would  be 
important.  We  can  have  no  doubt  that  the  act  of  the  defendant  in 
attempting  to  part  the  fighting  dogs,  one  of  which  was  his  own,  and  for 
the  injurious  acts  of  which  he  might  be  responsible,,  was  a  lawful  and 
proper  act,  which  he  might  do  by  proper  and  safe  means.  If,  then, 
in  doing  this  act,  using  due  care  and  all  proper  precautions  necessary 
to  tlie  exigency  of  the  case,  to  avoid  hurt  to  others,  in  raising  his  stick 
for  that  purpose,  he  accidentally  hit  tlie  plaintiff  in  his  eye,  and  wounded 
him,  this  was  the  result  of  pure  accident,  or  was  involuntary  and  un- 
a\'oidable,  and  therefore  the  action  would  not  lie.  Or  if  the  defendant 
was  chargeable  with  some  negligence,  and  if  the  plaintiff  was  also 
chargeable  with  negligence,  we  think  the  plaintiff  cannot  recover  with- 
out showing  that  the  damage  was  caused  wholly  by  the  act  of  the  de- 
fendant, and  that  the  plaintiff's  own  negligence  did  not  contribute  as 
an  efficient  cause  to  produce  it. 

The  court  instructed  the  jury,  that  if  it  was  not  a  necessary  act,  and 
the  defendant  was  not  in  duty  bound  to  part  the  dogs,  but  might  with 
propriety  interfere  or  not  as  he  chose,  the  defendant  was  responsible 


SECT.  IV.]  BROWN  V.   KENDALL.  627 

for  the  consequences  of  the  blow,  unless  it  appeared  that  he  was  in 
the  exercise  of  extraordinary  care,  so  that  the  accident  was  inevitable, 
using  the  word  not  in  a  strict  but  a  popular  sense.  This  is  to  be  taken 
in  connection  with  the  charge  afterwards  given,  that  if  the  jury  be- 
lieved, that  the  act  of  interference  in  the  fight  was  unnecessary  (that 
is,  as  before  explained,  not  a  duty  incumbent  on  the  defendant),  then 
the  burden  of  proving  extraordinary  care  on  the  part  of  the  defendant, 
or  want  of  ordinary  care  on  the  part  of  plaintiff,  was  on  the  defendant. 

The  court  are  of  opinion  that  these  directions  were  not  conformable 
to  law.  If  the  act  of  hitting  the  plaintiff  was  unintentional,  on  the 
part  of  the  defendant,  and  done  in  the  doing  of  a  lawful  act,  then  the 
defendant  was  not  liable,  unless  it  was  done  in  the  want  of  exercise  of 
due  care,  adapted  to  the  exigency  of  the  case,  and  therefore  such  want 
of  due  care  became  part  of  the  plaintiff's  case,  and  the  burden  of  proof 
was  on  the  plaintiff  to  establish  it.  2  Greenl.  Ev.,  §  85;  Powers  v.  Rus- 
sell, 13  Pick.  69,  76;  Tourtellot  v.  Rosebrook,  11  Met.  460. 

Perhaps  the  learned  judge,  by  the  use  of  the  term  extraordinary  care, 
in  the  above  charge,  explained  as  it  is  by  the  context,  may  have  intended 
nothing  more  than  that  increased  degree  of  care  and  diligence,  which 
the  exigency  of  particular  circumstances  might  require,  and  which  men 
of  ordinary  care  and  prudence  would  use  under  like  circumstances,  to 
guard  against  danger.  If  such  was  the  meaning  of  this  part  of  the 
charge,  then  it  does  not  differ  from  our  views,  as  above  explained. 
But  we  are  of  opinion,  that  the  other  part  of  the  charge,  that  the 
burden  of  proof  was  on  the  defendant,  was  incorrect.  Those  facts 
which  are  essential  to  enable  the  plaintiff  to  recover,  he  takes  the  bur- 
den of  proving.  The  evidence  may  be  offered  by  the  plaintiff  or  by  the 
defendant;  the  question  of  due  care,  or  want  of  care,  may  be  essen- 
tially connected  with  the  main  facts,  and  arise  from  the  same  proof; 
but  the  eff'ect  of  the  rule,  as  to  the  burden  of  proof,  is  this,  that  when  the 
proof  is  all  in,  and  l)efore  the  jury,  from  whatever  side  it  comes,  and 
whether  directly  proved,  or  inferred  from  circumstances,  if  it  appears 
that  the  defendant  was  doing  a  lawful  act,  and  unintentionally  hit  and 
hurt  the  plaintiff,  then  unless  it  also  appears  to  the  satisfaction  of  the 
jury,  that  the  defendant  is  chargeable  with  some  fault,  negligence, 
carelessness,  or  want  of  prudence,  the  plaintiff  fails  to  sustain  the 
burden  of  proof,  and  is  not  entitled  to  recover.^  • 

New  trial  ordered. 

1  See  Morris  v.  Piatt,  21  Conn.  75.  —  Ed. 


628  MOSES  V.  DUBOIS.  [chap.  v. 

MOSES  V.   DUBOIS. 
Court  of  Appeals,  South  Carolina,  1838. 
[Reported  6  Cush.  292.] 

This  was  an  action  for  false  imprisonment,  against  the  captain  of  a 
steamboat,  for  carrvang  Sol.  Moses  (deputy  sheriff),  to  Norfolk,  against 
his  will.  The  plaintiff  had  a  bail  writ  of  Squire  &  Rogers  v.  one  Dicker- 
son,  who  was  a  passenger  in  defendant's  steamboat;  he  went  on  board 
to  arrest  Dickerson,  just  as  the  steamboat  was  about  to  leave  the 
wharf;  informed  the  captain  that  he  had  a  prisoner  on  board,  and  re- 
quested him  to  wait  until  he  obtained  assistance.  But  the  usual  time 
of  departure  ha\'ing  passed,  the  boat  went  into  the  stream  (some  dis- 
tance from  the  wharf),  and  stopped.  The  plaintiff  served  the  writ, 
but  Dickerson  resisted,  and  the  plaintiff  demanded  assistance  of  the 
defendant  and  the  passengers,  but  they  refused  their  aid.  He  then 
demanded  to  go  ashore  for  assistance.  This  also  the  captain  refused, 
but  offered  to  send  him  and  his  prisoner  ashore;  but  as  the  plaintiff 
could  not  take  Dickerson  with  him,  he  declined  going.  The  captain 
then  departed  for  Norfolk.  When  opposite  Fort  Moultrie,  the  plain- 
tiff requested  to  be  sent  ashore;  but  the  captain  answered  it  was  then 
too  late;  and  took  him  to  Norfolk  and  back,  for  which  the  plaintiff 
was  required  to  pay  $40  passage  money.  In  the  meantime  he  lost  the 
ser\ang  of  writs,  &c.,  which  was  estimated  at  $50.  He  was  gone  about 
two  weeks,  and  demanded  vindictive  damages,  for  such  violation  of  his 
personal  liberty.    No  actual  violence  to  his  person  was  offered. 

His  Honor  charged  the  jury. 

1st.  That  neither  the  captain  nor  passengers,  were  under  any  legal 
oi)ligation  to  assist  the  deputy  sheriff  in  taking  Dickerson,  under  the 
ci\il  process  of  a  bail  writ,  although  they  might  have  been  justified,  if 
they  had  chosen  so  to  do. 

2d.  That  there  being  no  positive  violence  offered  to  the  person  of  the 
plaintiff,  the  jury  could  not  find  damages  against  the  captain,  unless 
he  had  wilfully  taken  the  plaintiff  from  his  proximity  to  the  wharf, 
where  he  might,  perhaps,  have  obtained  assistance  of  the  sheriff's  offi- 
cers, or  of  other  persons,  and  had  done  this  with  a  view  to  prevent  or 
lessen  the  chances  of  such  assistance;  that  in  this  way,  he  might  have 
connived  at  the  escape  and  promoted  the  detention  of  the  plaintiff,  so 
as  to  constitute  his  imprisonment  —  of  this,  the  jiiry  were  to  judge. 

3d.  That  although  the  captain  had  offered  to  send  the  plaintiff  and 
his  prisoner  ashore,  after  the  steamer  had  got  into  the  stream,  and  al- 
though the  plaintiff  had  refused  to  go  without  Dickerson,  whom  he 
could  not  command;  yet,  as  the  captain  afterwards  refused  to  land 
the  plaintiff  ashore,  when  he  desired  it  (opposite  Fort  Moultrie),  his 
conduct  afforded  some  evidence  of  management  to  detain  him,  and  to 


} 


SECT.   IV.]  MOSES  V.   DUBOIS.  629 

cairy  him  to  Norfolk,  against  his  will.  Which  management,  if  the  jury 
believed  it  from  the  whole  conduct  of  the  captain,  might  amount  to  a 
false  imprisonment,  and  support  the  action,  although  no  xaolence  was 
done  to  the  person.  Finally,  that  although  the  defendant  was  in  no 
way  bound  to  assist  the  deputy  sheriff,  and  had  conducted  ci\'illy 
enough,  that  his  swinging  off  the  boat  from  the  wharf  so  quickly,  after 
the  plaintiff  announced  his  business  —  and  his  afterwards  refusing  to 
send  him  ashore,  savored  of  a  disposition  to  frustrate  his  efforts,  or 
might  arise  from  a  collusion  with  Dickerson  to  favor  his  escape.  But 
the  jury  were  to  judge  whether  it  amounted  in  fact  to  wilful  and  un- 
lawful detention,  or  false  imprisonment,  and  if  so,  to  find  for  the  plain- 
tiff;  otherwise  for  the  defendant. 

The  jury  returned  a  ^'erdict  of  SI 00. 

The  defendant  appealed,  and  moved  for  a  new  trial,  on  the  following 
grounds : 

1st.  The  defendant  was  under  no  obligation  to  postpone  his  ^■oyage, 
until  the  plaintiff  should  think  fit  to  leave  his  vessel. 

2d.  His  Honor  charged  the  jury  that  they  might  find  for  the  plain- 
tiff, on  the  ground  of  collusion  betv/een  the  defendant  and  Dickerson, 
and  left  it  to  the  jury  to  say  whether  there  was  or  was  not  collusion; 
whereas,  it  is  respectfully  submitted,  that  as  no  evidence  of  collusion 
was  offered,  nor  even  any  from  which  collusion  might  be  inferred,  the 
only  question  proper  to  be  left  to  the  jury  was,  whether  the  defendant, 
before  he  proceeded  on  his  voyage,  allowed  the  plaintiff  a  fair  oppor- 
tunity of  deciding  whether  he  would  go  ashore  or  not. 

3d.  The  verdict  is  palpably  against  evidence,  and  opposed  to  the 
plainest  rules  of  justice. 

Earle,  J.,  delivered  the  opinion  of  the  court. 

The  lines  of  a  separation  between  the  injuries  which  are  redressed  by 
actions  of  trespass  vi  rt  armis,  and  those  which  are  redressed  by  actions 
on  the  case,  are  often  so  slightly  defined  as  to  be  almost  imperceptible. 
But  it  is  oftener  difficult  to  distinguish  between  injuries  that  are  imme- 
diate and  such  as  are  consequential,  than  such  as  are  committed  with 
force,  and  such  as  are  without  force.  The  essential  and  invariable 
ground  of  separation  between  trespass  and  case,  is  the  force  which  is 
always  necessary  to  sustain  an  action  of  trespass  ri  et  arvns,  whether 
to  the  person  or  to  the  property.  That  the  evidence  in  this  case  would 
authorize  a  jury  to  give  damages,  may  be  conceded  without  deciding 
the  question,  for  it  is  not  every  injury  ex  delicto  that  will  sustain  tres- 
pass :  and  the  defendant  may  have  been  actuated  by  the  worst  motives 
without  making  himself  liable  in  this  form  of  action.  Every  unlawful 
restraint  of  personal  liberty  is  an  imprisonment,  whether  accompanied 
by  corporal  touch  or  not  —  whether  in  a  house,  in  a  ship,  or  in  the 
street.  But  force  of  some  sort  must  be  used,  and  it  must  be  a  deten- 
tion against  the  will,  and  it  is  indispensable  that  these  two  circum- 
stances should  unite.    The  force  may  be  exhibited  in  a  variety  of  ways 


630  MOSES   V.   DUBOIS.  [CIL^P.  V. 

without  actual  assault  or  corporal  touch  —  by  locking  a  door  after 
enticing  one  within,  and  refusing  to  open  it  for  his  departure;  by 
setting  sail  or  pusliing  off  from  shore,  having  one  on  board,  and  refus- 
ing to  allow  him  to  go  ashore;  or  by  detaining  one  on  the  highway  by 
threats  of  personal  violence  if  he  departed.  And  it  is  equally  essential 
that  the  person  should  be  detained  against  his  Avill ;  for  if  he  voluntarily 
place  himself  in  a  situation  where  another  may  lawfully  do  that  which 
has  the  effect  of  restraining  liberty,  especially  if  he  refuse  to  depart 
when  he  may,  he  cannot  complain  that  he  is  unlawfully  imprisoned 
against  his  will.  A  sheriff's  officer  goes  to  the  house  of  A  on  the  even- 
ing of  an  entertainment,  with  a  bail  process  against  one  of  his  guests, 
and  enters,  as  he  lawfully  may,  and  makes  the  arrest,  A  refusing  to 
assist  him,  but  offering  no  hindrance;  being  unal)le  to  remove  his  pris- 
oner, he  chooses  to  remain  until  the  close  of  the  entertainment,  expecting 
then  to  accomplish  his  purpose  on  the  departure  of  the  guests;  but  the 
prisoner  being  on  a  visit  there,  remains.  The  officer  being  informed 
that  the  doors  are  about  to  be  closed,  is  requested  to  depart  unth  his 
prisoner  if  he  can  take  him,  else  without  him;  but  he  is  unable  to  take, 
and  refuses  to  go  without  him.  If  A  should  lock  his  doors  and  retire  to 
rest,  could  the  officer  complain  of  false  imprisonment  if  A  should  refuse 
to  rise  at  a  late  hour  of  the  night  at  his  request,  to  open  the  door?  I 
should  think  not.  If  a  man  enters  a  tavern  and  continues  there  all 
night  against  the  will  of  the  landlord,  it  is  a  trespass  —  could  he  com- 
plain if  the  landlord  shuts  his  door  upon  him?  The  general  rule  is,  that 
a  trespass  will  not  lie  for  a  mere  nonfeasance;  and  it  seems  to  follow 
from  that  proposition,  that  when  an  act  has  been  done,  in  the  first  in- 
stance lawful  in  itself,  it  cannot  be  rendered  unlawful  ab  initio,  except  by 
some  positive  act  incompatible  with  the  exercise  of  the  legal  right  to  do 
the  first  act.  20  John.  Rep.  429,  15  id.  401.  In  the  case  made  by  the 
e\idence,  it  does  not  appear  that  the  plaintiff  was  carried  from  the 
shore  against  his  will,  but  the  reverse.  The  destination  of  the  boat  was 
known  —  the  accustomed  hour  of  departure  was  passed ;  the  boat  was 
in  the  act  of  getting  under  way;  at  that  moment  the  plaintiff  chose 
to  go  on  board,  to  arrest  a  person  on  a  bail  process,  evidently  under  a 
mistaken  impression  as  to  the  extent  of  his  authority ;  and  seeing  the 
boat  lea\ang  the  wharf,  he  chose  to  remain.  Here,  then,  there  was  no 
unlawful  detention,  according  to  the  principles  I  have  laid  down:  the 
defendant  was  in  the  discharge  of  his  known  and  accustomed  duty,  and 
therefore  in  the  performance  of  a  lawful  act,  and  the  plaintiff  was  not 
detained  against  his  will.  At  what  time  did  the  false  imprisonment 
commence?  After  the  boat  had  proceeded  into  the  stream  some  dis- 
tance from  the  wharf,  the  defendant  came  and  proposed  to  the  plaintiff 
to  send  him  ashore  with  his  prisoner,  if  he  could  take  him,  else  to  send 
him  alone.  The  plaintiff  refused  to  go  unless  the  defendant  would  aid 
him  in  carrying  his  prisoner.  It  need  not  be  repeated  that  this  the 
defendant  was  not  bound  to  do.    It  was  his  duty  to  interpose  no  obstacle 


SECT.  IV.]  MOSES  V.   DUBOIS.  631 

to  the  arrest  or  removal  of  the  prisoner,  but  rather  to  afford  such  facih- 
ties  as  he  could  to  the  service  of  legal  process.  This  he  seems  to  have 
done,  and  more  could  hardly  have  been  expected.  On  the  refusal  of  the 
plaintiff  to  go  ashore  the  defendant  proceeded  on  his  voyage,  one  on 
which  the  plaintiff  knew  the  boat  was  in  the  act  of  departing  when 
he  went  aboard.  This  was  also  the  accustomed  duty,  the  office  of  the 
defendant,  and  was  therefore  a  lawful  act. 

If  the  defendant  was  not  boupd  to  aid  in  the  arrest  and  removal  of 
the  prisoner,  I  do  not  perceive  that  he  was  bound  either  to  delay  his 
voyage,  or  put  back  his  boat,  to  enable  the  plaintiff  to  procure  assist- 
ance. WTien  the  boat  had  arrived  at  the  mouth  of  the  harbor  near 
Sullivan's  Island,  the  plaintiff  demanded  to  be  put  ashore,  which  the 
defendant  then  refused;  here  commenced  the  detention  of  the  plaintiff 
against  his  will.  Was  it  unlawful?  I  think  it  cannot  be  so  held;  the 
defendant  only  proceeded  on  his  voyage.  His  refusal  to  send  the 
plaintiff'  ashore  at  that  time,  which  would  have  delayed  his  progress 
and  put  him  to  trouble,  was  a  mere  nonfeasance,  which,  if  he  had  been 
guilty  of  no  trespass  upi  to  that  time,  did  not  render  him  a  trespasser 
ab  initio:  it  was  not  a  positive  act,  incompatible  with  the  legal  exercise 
of  the  right  to  proceed  from  the  wharf,  the  plaintiff  being  on  board. 

If  the  plaintiff,  as  the  case  was  put  to  the  jury,  had  wilfully  put  off 
from  the  shore,  to  prevent  assistance,  and  to  aid  the  escape  of  Dick- 
erson,  he  might,  perhaps,  be  liable  to  the  creditor  of  Dickerson.  Hut 
I  do  not  perceive  how  a  connivance  in  the  case  of  Dickerson  can  be 
united  with  a  deliberate  purpose  of  detaining  the  plaintiff  and  carrying 
him  to  Norfolk  against  his  will.  The  most  effectual  mode  of  aiding  the 
escape  of  Dickerson,  would  seem  to  be  to  hasten  the  departure  of 
Moses;  besides,  a  deliberate  purpose  of  carrying  him  to  Norfolk  cannot 
be  reconciled  with  the  offer  to  send  him  ashore:  and  therefore  could 
not  have  existed  at  the  time  of  his  leaving  the  wharf,  if  he  did  it  ever  so 
hastily.  If  the  defendant  exliibited  an  anxiety  to  aid  the  escape  of 
Dickerson,  and  hastened  to  leave  the  wharf  and  get  into  the  stream,  to 
prevent  the  plaintiff'  from  obtaining  help,  it  was  improper.  The  court 
has  striven  to  sustain  the  verdict,  but  can  find  no  precedent  of  such  an 
action.  The  principal  authority  cited  by  counsel  from  Blackstone,  and 
referred  to  by  Chitty,  is  this :  "  Injuries  to  the  person  may  be  committed, 
1st,  by  threats  and  menaces  of  bodily  hurt,  through  fear  of  which,  a 
man's  business  is  interrupted,"  and  cites  F'inch,  L.,  202,  Reg.  104.  I 
have  not  been  able  to  consult  these  last:  I  suppose  it  to  be  of  actual 
personal  detention  from  customary  employment,  by  threats  and  putting 
in  fear;  and  this  comes  up  to  what  I  have  before  said  of  the  kind  of  force 
which  may  be  used.  But  mere  dicta  in  the  old  books  sometimes  mislead 
and  sometimes  have  ceased  to  be  of  authority.  It  is  said  in  Viner, 
citing  Brooke,  "if  a  man  says  he  will  cut  oft"  my  arm,  it  is  an  assault;" 
"  if  a  man  says  to  me  that  if  I  will  not  cease  my  suit  which  I  have  against 
him,  he  will  beat  me  —  this  is  an  assault."    But  it  is  well  settled  now. 


^     'vX  ■  REGINA   r.   LESLEY. 

Crown  Case  Reserved.     1860. 

[Reported  Bell,  220 ;  8  Cor  C.  C.  269.] 

I    Erle,  C.  J.^     In  this  case  the  question  is  whether  a  conviction  for 
false  imprisonment  can  be  sustained  upon  the  following  facts. 
\   The  prosecutor  and  others,  being  in  Chili,  and  subjects  of  that  state, 
were  banished  by  the  government  from  Chili  to  England. 

The  defendant,  being  master  of  an  English  merchant  vessel  lying  in 
the  territorial  waters  of  Chili,  near  Valparaiso,  contracted  with  that 
government  to  take  the  prosecutor  and  his  companions  from  Valparaiso 
to  Liverpool,  and  they  were  accordingly  brought  on  board  tlie  defen- 
dant's vessel  by  the  officers  of  the  government  and  carried  to  Liverpool 
by  the  defendant  under  his  contract.  Then,  can  the  conviction  be 
sustained  for  that  which  was  done  within  the  Chilian  waters?  We 
answer  no. 

We  assume  that  in  Chili  the  act  of  the  government  towards  its  sub- 
jects was  lawful ;  and  altliough  an  English  ship  in  some  respects  carries 
with  her  the  laws  of  her  country  in  the  territorial  waters  of  a  foreign 
state,  yet  in  other  respects  she  is  subject  to  the  laws  of  that  state  as  to 
acts  done  to  the  subjects  thereof. 

1  The  opinion  only  is  given.  In  addition  to  the  fiicts  therein  stated,  the  following 
may  be  useful  :  — 

It  appealed  by  the  evidence  for  the  prosecution  that  the  prisoners  requested  the 
defendant  to  take  them  to  Peru,  which  was  near,  offering  to  pay  him  what  the  Govern- 
ment of  Chili  paid  him,  but  that  the  defendant  refused,  on  the  ground  that  his  contract 
required  him  to  carry  the  prisoners  to  Liverpool.  They  made  no  other  request  to  be 
put  ashore.  The  vessel  touched  at  the  Azores,  and  the  defendant  made  holes  in  the 
boats  to  prevent  the  escape  of  the  prisoners. 

Watson",  B.  ,  who  tried  the  case,  directed  a  verdict  of  guilty,  and  reported  the  case 
to  the  Court  for  Crown  Cases  Reserved.  —  Ed. 


I 


632  REGINA    V.   LESLEY.  [CHAP.   V. 

that  no  mere  %vords  whatsoever  will  constitute  an  assault.    We  cannot  | 

believe  that  the  extensive  mischiefs  will  ensue,  in  the  administration  of 
justice,  which  have  been  anticipated,  should  we  set  aside  this  verdict; 
such  a  conjuncture  of  circumstances  is  not  likely  to  occur  again.  The 
consequences  have  grown  out  of  the  mistake  of  the  plaintiff,  in  suppos- 
ing he  had  a  right  to  call  on  bystanders  to  aid  him  in  making  the 
arrest.  In  like  cases  again,  the  sheriff's  officer  wall  only  have  to  take  wdth 
him  such  a  force  of  followers  as  wnll  enable  him  to  overcome  opposition. 
Whatever  may  be  the  effect,  we  cannot  overthrow  the  settled  rules 
of  pleading,  and  obliterate  the  settled  forms  of  action,  to  suit  the  exi- 
gency in  a  particular  case,  or  to  avoid  the  possible  consequence  of  a 
particular  decision. 

The  motion  for  a  new  trial  is  granted. 


1 


SECT.  IV.]  REGINA  V.   LESLEY.  633 

We  assume  that  the  government  could  justify  all  that  it  did  within 
its  own  territovy,  and  we  think  it  follows  that  the  defendant  can  justify 
all  that  he  did°  there  as  agent  for  the  government  and  under  its  author- 
ity. In  Dobree  r.  Napier,  2  Bing.  N.  C  781,  tlie  defendant,  on  behalf 
of  the  Queen  of  Portugal,  seized  the  plaintifl"s  vessel  for  violating  a 
blockade  of  a  Portuguese  port  in  time  of  war.  The  plaintiff"  brought 
trespass  ;  and  judgment  was  for  the  defendant,  because  the  Queen  of 
Portugal,  in  her  own  territory,  liad  a  right  to  seize  the  vessel  and  to 
employ  whom  she  would  to  make  the  seizure  ;  and  therefore  the  defend- 
ant, though  an  Englisliman  seizing  an  P^nglish  vessel,  could  justify  the 
act  under  the  employment  of  the  Queen. 

We  think  that  the  acts  of  .the  defendant  in  Chili  become  lawful  on 
the  same  principle,  and  therefore  no  ground  for  the  conviction. 

The  further  question  remains.  Can  the  couA'iction  be  sustained  for 
that  which  was  done  out  of  the  Chilian  territory?  And  we  think  it  can- 
It  is  clear  that  an  English  ship  on  the  high  sea,  out  of  any  foreign 
territory,  is  subject  to  the  laws  of  England  ;  and  persons,  whether  for- 
eign or  English,  on  board  such  ship,  are  as  much  amenable  to  P^nglish 
law  as  they  would  be  on  English  soil.  In  Regina  v.  Sattler,  1  D.  &  B. 
C.  C.  525,  this  principle  was  acted  on,  so  as  to  make  the  prisoner,  a  for- 
eigner, responsible  for  murder  on  board  an  English  ship  at  sea.  The 
same  principle  has  been  laid  down  by  foreign  writers  on  international 
law,  among  which  it  is  enough  to  cite  Ortolan,  "  Sur  la  Diplomatic  de 
la  Mer,"  liv.  2.  cap.  13. 

The  Merchant  Shipping  Act,  17  &  18  Vict.  c.  104,  s.  267,  makes  the 
master  and  seamen  of  a  British  ship  responsible  for  all  offences  against 
propert}'  or  person  committed  on  the  sea  out  of  her  Majestj's  dominions 
as  if  the}'  had  been  committed  within  the  jurisdiction  of  the  Admiralty 
of  P^ngland. 

Such  being  the  law,  if  the  act  of  the  defendant  amounted  to  a  false 
imprisonment  he  was  liable  to  be  convicted.  Now,  as  the  contract  of 
the  defendant  was  to  receive  the  prosecutor  and  the  others  as  prisoners 
on  board  his  ship,  and  to  take  them,  without  their  consent,  over  the  sea 
to  England,  although  he  was  justified  in  first  receiving  them  in  Chili, 
yet  that  justification  ceased  when  he  passed  the  line  of  Chilian  juris- 
diction, and  after  that  it  was  a  wrong  which  was  intentionally  planned 
and  executed  in  pursuance  of  the  contract,  amounting  in  law  to  a  false 
imprisonment. 

It  may  be  that  transportation  to  England  is  lawful  by  the  law  of 
Chili,  and  that  a  Chilian  ship  might  so  lawfuU}'  transport  Chilian  sub- 
jects ;  but  for  an  English  ship  the  laws  of  Cliili,  out  of  the  state,  are 
powerless,  and  the  lawfulness  of  the  acts  must  be  tried  by  English  law. 

For  these  reasons,  to  the  extent  above  mentioned,  the  conviction  is 
aflflrmed.  Co7iviction  confirmed  accordingly.^ 

1  For  the  extent  to  which  the  command  of  a  military  or  naval  superior  officer  will 
justify  a  criminal  act,  see  Reg.  i\  Thomas,  1  Riiss.  Crimes,  731  ;  Keg.  v.  Hutchinson, 
9  Cox  C.  C.  555;  U.  S.  v.  Clark,  31  F.  K.  710,  infra.  — V.d. 


634     THE  BALMAIN  NEW  FERRY  CO.,  LTD.,   V.  ROBERTSON.     [cHAP.  V. 


THE   BALMAIN   NEW   FERRY   CO.,    LTD.,    v.   ROBERTSON. 
High  Court  of  Australia,  1906. 

[Reported  4  Com.  L.  R.  379.] 

O'Connor,  J.    The  material  facts  of  this  case  may  be  shortly  stated. 

The  appellants  carried  on  the  business  of  a  harbor  steam  ferry  from 
the  City  of  Sydney  to  Balmain,  in  connection  with  which  they  used  a 
wharf  and  premises  leased  by  them  from  the  Harbor  Trust  Commis- 
sioners. Fares  were  not  taken  on  the  steamers  or  on  the  Balmain  side, 
but  were  all  collected  on  the  Sydney  wharf  on  the  following  system: 
On  the  street  side  of  the  wharf  were  two  registering  turnstiles,  one  for 
entry,  the  other  for  exit.  The  turnstiles  did  not  quite  fill  up  the  open- 
ing in  which  they  moved,  there  being  a  space  of  some  eight  and  a  half 
inches  between  the  outer  edge  of  the  turnstiles  and  the  bulkhead.  For 
the  purposes  of  this  case  it  may  be  taken  that  there  was  no  other'way  of 
entering  or  leaA'ing  the  wharf  on  the  land  side  except  by  the  turnstiles. 
An  officer  of  the  company  was  stationed  at  each  turnstile.  Passengers 
entering  the  wharf  paid  one  penny  to  the  officer  at  the  entry  turnstile, 
were  admitted,  and  had  then  the  right  to  travel  by  the  company's 
steamers  to  Balmain.  Similarly  passengers  leaving  the  wharf,  whether 
they  had  traveled  from  Balmain  in  the  company's  steamers  or  not, 
paid  a  penny  to  the  officer  at  the  exit  turnstile  and  were  allowed  to  pass 
through  to  the  street.  The  turnstile  in  each  case  automatically  regis- 
tered the  number  of  passengers  passing  through,  and  was  thus  a  check 
upon  the  officers'  cash  takings.  Two  photographs  were  put  in  by  the 
plaintiff,  respondent,  one  showing  the  exterior,  the  other  the  interior 
of  the  wharf,  from  which  it  appeared  that  there  was  a  notice  board  a 
few  feet  over  the  turnstiles,  on  which  were  painted  the  words,  "  Notice. 
A  fare  of  one  penny  must  be  paid  on  entering  or  lea\'ing  the  wharf.  No 
exception  will  be  made  to  this  rule,  whether  the  passenger  has  traveled 
by  the  ferry  or  not."  The  notice  was  so  placed  that  in  the  daytime,  at 
least,  it  would  be  difficult  for  a  passenger  giving  reasonable  attention 
to  his  surroundings  to  avoid  seeing  it.  The  photographs  also  showed  a 
large  gas  lamp  so  situated  that  at  night  time,  if  alight,  it  would  throw  a 
full  light  on  the  notice,  but  there  was  no  direct  evidence  either  that  it 
was  generally  fit  at  night  or  that  it  was  alight  on  the  evening  of  the 
occurrence. 

On  the  night  of  5th  June,  1906,  the  respondent  and  a  lady  came  to  the 
wharf,  and,  with  the  intention  of  crossing  to  Balmain  in  one  of  the 
appellant's  steamers,  passed  tlirough  the  entrance  turnstile,  each  pay- 
ing a  penny.    When  they  had  got  to  the  water  side  of  the  wharf  they 


SECT.  IV.]     THE  BALMAIN  NEW  FERRY  CO.,  LTD.,  I'.  ROBERTSON.     635 

found  that  the  steamer  had  gone,  and,  instead  of  waiting  for  the  next, 
they  determined  to  go  to  another  ferry  company's  wharf  and  cross  the 
harbor  by  another  steamer  to  Balmain.  The  respondent,  seeing  no  way 
of  getting  from  the  wharf  into  the  street  except  by  the  turnstiles, 
asked  one  of  the  officers  at  the  turnstiles  to  show  him  the  way  out. 
The  officer  replied  that  there  was  only  one  way  out,  and  that  was 
through  the  turnstile.  The  respondent  then  asked  if  he  was  expected 
to  pay  on  going  out,  seeing  that  he  had  not  traveled  by  the  steamer. 
The  officer  replied  in  the  aflSrmative,  and  told  him  that  unless  he 
did  pay  he  would  not  be  allowed  to.  go  out  through  the  turnstile.  The 
respondent  denied  the  company's  right  to  make  the  charge,  or  to  make 
its  payment  a  condition  of  his  being  permitted  to  pass  through  the 
turnstile.  The  officer  then  called  his  attention  to  the  notice.  After 
some  further  conversation  the  respondent  endeavored  to  force  his 
way  through  the  eight  and  a  half  inch  space  between  the  entrance 
turnstile  and  the  bulkhead,  but  was  prevented  from  doing  so  by  the 
appellant  company's  officers,  who  used  force  for  that  purpose.  After 
some  twenty  minutes,  during  which  the  respondent  continued  to 
assert  and  the  officers  to  deny  his  right  to  pass  out  through  the  turnstiles 
without  payment,  the  respondent  eventually,  in  spite  of  opposing 
force  on  the  part  of  the  officers,  squeezed  his  way  out  between  the  exit 
turnstile  and  the  bulkhead  and  gained  the  street.  These  facts  con- 
stituted the  assault  and  false  imprisonment  for  which  the  respondent 
sued. 

At  the  trial  of  the  action  the  respondent  obtained  a  verdict  for  £100 
damages,  and,  on  appeal,  the  Supreme  Court  granted  a  rule  nisi  for  a 
new  trial  or  a  nonsuit  or  Aerdict  for  the  defendants  on  the  grounds 

(1)  that  His  Honor  was  in  error  in  directing  the  jury  that  the  trespass 
complained  of  was  not  within  the  scope  of  the  servants'  authority; 

(2)  that  he  was  in  error  in  directing  that  the  defendants  had  no  right 
to  demand  the  second  penny;  and  (3)  that  he  should  have  directed  the 
jury  that,  if  they  came  to  the  conclusion  that  the  company  had  done 
what  was  reasonable  to  give  persons  going  on  the  wharf  notice  of  the 
terms  on  which  they  were  admitted,  the  jury  were  entitled  to  find  that 
the  plaintiff  was  bound  by  that  notice.  The  rule  was  subsequently 
discharged  with  costs:  Robertson  v.  Balmain  New  Ferry  Co.,  Ltd. 

From  this  decision,  as  to  the  second  and  third  grounds  of  the  rule 
7iisi,  the  present  appeal  was  l>rought  by  special  leave,  the  court  ha\'ing 
refused  to  grant  leave  as  to  the  first  ground. 

It  is  admitted  on  this  appeal  that  the  company  are  responsible  for 
what  was  done  by  their  officers,  so  that  there  is  left  for  our  decision 
substantially  one  question  only,  namely,  whether,  on  the  facts,  the 
company  are  liable  to  the  plaintiff  for  false  imprisonment  and  assault. 
The  legal  position  on  which  the  plaintiff  relies  may  be  thus  stated: 
He  entered  the  wharf  under  a  contract  to  be  carried  in  the  company's 
steamer  from  Sydney  to  Balmain.    Before  tiie  contract  was  performed 


636     THE  BALAIAESJ"  NEW  FERRY  CO.,   LTD.,   i".   ROBERTSON.      [CHAP.  V. 

he  decided  to  abandon  it,  and,  having  no  further  business  on  the 
wharf,  became  entitled  to  pass  out  to  the  street  through  the  turnstiles, 
or,  if  not  through  them,  at  least  through  the  eight  and  a  half  inch 
space  between  the  turnstile  and  tlie  bulkliead.  The  company's  officers 
by  force  prevented  him  from  doing  so,  refused  to  allow  him  to  pass  out 
through  the  turnstile  exceprt  on  payment  of  a  penny  at  the  exit  turn- 
stile, and  thus  kept  him  imprisoned  as  a  means  of  enforcing  payment  of 
that  demand.  He  maintains  that,  even  if  he  were  bound  to  pay  the 
extra  penny  as  a  matter  of  contract  and  it  became  a  debt  recoverable 
in  the  courts,  the  company  could  not  thus  take  the  law  into  their  own 
hands  and  deprive  him  of  his  liberty  in  order  to  enforce  payment.  If 
that  were  an  accurate  statement  of  the  position,  the  plaintiff's  conten- 
tion would  be  unanswerable.  But  it  is  not  an  accurate  statement  of 
the  position.  Undoubtedly  it  is  not  permissible  for  a  creditor,  except 
under  due  process  of  the  law,  to  abridge  the  liberty  of  his  debtor  for 
the  purpose  of  enforcing  payment.  But  the  abridgment  of  a  man's 
liberty  is  not  under  all  circumstances  actionable.  He  may  enter  into 
a  contract  which  necessarily  involves  the  surrender  of  a  portion  of  his 
liberty  for  a  certain  period,  and  if  the  act  complained  of  is  nothing 
more  than  a  restraint  in  accordance  with  that  surrender  he  cannot 
complain.  Nor  can  he,  ^-ithout  the  assent  of  the  other  party,  by  elect- 
ing to  put  an  end  to  the  contract,  become  entitled  at  once,  uncon- 
ditionally and  irrespective  of  the  other  party's  rights,  to  regain  his 
liberty  as  if  he  had  never  surrendered  it.  A  familiar  instance  of  such  a 
contract  is  that  between  a  passenger  and  the  railway  company  which 
undertakes  to  carry  him  on  a  journey.  If  the  passenger  suddenly  during 
the  journey  decided  to  abandon  it  and  to  leave  the  train  at  the  next 
station,  being  one  at  which  the  train  was  not  timed  to  stop,  he  clearly 
could  not  be  entitled  to  have  the  train  stopped  at  that  station.  How- 
ever much  he  might  object,  the  railway  company  could  lawfully  carry 
him  on  to  the  next  stopping  place  of  that  particular  train.  In  such  a 
case  the  passenger's  liberty  would  be  for  a  certain  period  restrained, 
but  the  restraint  would  not  be  actionable,  because  it  is  an  implied  term 
of  such  a  contract  that  the  passenger  will  permit  the  restraint  of  his 
liberty  so  far  as  may  be  necessary  for  the  performance  by  the  company 
of  the  contract  of  carriage  according  to  the  time  table  of  that  train.  Or 
a  person  may  conditionally,  by  his  own  act,  place  himself  in  such  a 
position  that  he  cannot  complain  of  a  certain  restraint  of  his  liberty. 
Take  an  illustration  which  was  used  in  the  course  of  the  argument.  As- 
sume that  the  turnstiles  on  the  company's  wharf  completely  closed  the 
opening  lietween  the  bulkheads,  that  they  were  worked  on  the  penny 
in  the  slot  system,  and  would  not  open  except  when  a  penny,  dropped 
in  the  slot,  operated  the  mechanism.  If  under  these  circumstances  the 
plaintiff,  having  opened  the  entry  turnstile  by  his  penny  and  entered 
the  wharf,  changed' his  mind  about  crossing  in  the  company's  steam- 
ers, and  wished  to  return  at  once  to  the  street,  could  he  claim  that  he 


SECT.   IV. I     THE  BALMAIN  NEW  P^ERRY  CO.,   LTD.,  V.  ROBERTSON.     637 

was  not  bound  to  use  the  ordinary  means  of  opening  the  exit  turn- 
stile by  dropping  in  his  penny,  but  was  entitled  to  break  his  way 
through  it,  or  to  demand  from  the  company's  officers  that  they  should 
specially  unlock  the  apparatus  to  enable  him  to  pass  out?  If,  under 
the  circumstances,  the  officers  refused  to  comply  with  his  request, 
could  it  possibly  be  contended  that  the  company  would  be  liable  to  an 
action  for  false  imprisonment?  Prima  facie,  no  doubt,  any  restraint 
of  a  person's  liberty  without  his  consent  is  actionable.  But,  when  the 
restraint  is  referable  to  the  terms  on  which  the  person  entered  the 
premises  in  which  he  complains  he  was  imprisoned,  we  must  examine 
those  terms  Ijefore  we  can  determine  whether  there  has  been  an  im- 
prisonment which  is  actionable.  The  fallacy  in  the  plaintiff's  legal 
position  lies  in  the  assumption  that,  immediately  he  abandoned  the 
contract  to  be  carried  to  Balmain  by  the  company's  steamer,  he  was  in 
the  same  position  as  if  the  wharf  was  one  to  which  the  public  had  free 
right  of  access,  that,  finding  his  exit  barred  by  the  turnstiles,  he  was 
entitled  either  to  squeeze  past  them,  or  to  demand  from  the  company's 
officers  that  they  should  be  specially  released  to  let  him  through. 
Whether  that  assumption  is  or  is  not  justifiable  depends  upon  the 
terms  on  which  the  plaintiff  was  permitted  to  enter  the  wharf.  In 
ascertaining  those  terms  it  must  be  remembered  that  the  wharf  was 
not  a  place  to  which  the  pul^lic  had  free  right  of  access.  If  it  had  been 
so  no  one  could  legally  place  upon  the  wharf  any  bar  or  obstruction  to 
the  free  entry  or  exit  of  any  member  of  the  public.  But  it  was  not  a 
public  place  in  that  sense.  It  was  private  property.  No  one  had  a 
right  to  enter  there  without  the  company's  permission,  and  they 
could  impose  on  the  members  of  the  public  any  terms  they  thought  fit 
as  a  condition  of  entering  or  leaving  the  premises.  What  were  the 
terms  on  which  the  plaintiff  entered  the  company's  wharf?  There  was 
no  express  contract,  and  the  terms  must  therefore  be  implied  from  the 
circumstances.  In  dealing  with  the  circumstances  I  leave  the  question 
of  the  notice  board  out  of  consideration.  In  my  view,  it  is  immaterial 
whether  the  company  did  what  was  reasonable  to  direct  public  atten- 
tion to  the  notice,  or  whether  the  plaintiff  ever  read  it  until  his  atten- 
tion was  called  to  it  by  the  officer  at  the  turnstile.  But  as  to  the  mate- 
rial facts  from  which  the  contract  must  be  implied  there  is  no  dispute. 
The  plaintiff  was  aware  that  the  only  entrance  to  and  exit  from  'tlie 
wharf  on  the  land  side  was  through  the  turnstiles,  and  that,  to  quote 
his  evidence,  "  When  the  turnstile  was  not  released  there  was  a  complete 
barrier  stretching  across  the  whole  entrance,"  in  other  words,  entrance 
to  and  exit  from  the  wharf  were  completely  barred  except  when  by  the 
action  of  the  officer  in  charge  the  turnstile  was  released.  He  also  knew 
that  the  turnstiles  were  so  constructed  as  to  admit  only  persons  enter- 
ing the  wharf  through  the  entry  turnstile,  and  only  persons  leaving  the 
wharf  through  the  exit  turnstile,  that  the  passing  through  of  every  pas- 
senger was  automatically  registered  by  the  turnstile,  and  that  the 


638     THE  BALMAIN  NEW  FERRY  CO.,  LTD.,   V.  ROBERTSON.      [CUAP.   V. 

automatic  register  was  a  check  on  the  cash  taken  by  the  officer. 
He  himself,  in  speaking  to  one  of  the  officers,  said,  "  If  it  is  the 
question  of  putting  out  the  tally  of  your  turnstiles  I  can  squeeze 
through  there,"  referring  to  the  eight  and  a  half  inch  space  before 
mentioned.  Having  traveled  on  many  occasions  backward  and  for- 
ward by  the  company's  boats,  and,  as  he  says,  paid  his  fare  to  the 
officers  at  the  turnstiles,  he  must  have  been  aware  that  the  companj^'s 
method  of  conducting  their  business  was  to  release  the  turnstiles  only 
on  payment  of  a  penny,  and  that  in  every  case  where  there  was  a  de-  -f 

parture  from  that  method  "the  tally  of  the  turnstile,"  as  he  terms  it, 
would  be  thrown  out. 

Such  being  the  condition  of  the  company's  premises,  and  such  being 
their  method  of  carrying  on  their  business,  the  plaintiff  paid  his  penny 
to  the  officer  and  went  through  the  entry  turnstile  on  to  the  wharf. 
The  first  question  is,  what  is  the  contract  to  be  implied  from  the 
plaintifi''s  payment  at  and  passing  through  the  turnstiles  under  these 
circumstances?  It  is  that  in  consideration  of  that  payment  the  com- 
pany undertook  to  carry  him  as  a  passenger  to  Balmain  by  any  of 
their  ferryboats  from  that  wharf.  That  is  the  only  contract  which 
could  be  implied  from  those  circumstances,  and  the  plaintiff  was  per- 
mitted to  enter  the  wharf  for  the  purpose  of  that  contract  being  per- 
formed. It  is  not  denied  that  the  company  were  ready  to  perform  their 
part,  but  the  plaintiff,  as  far  as  one  party  can  do  so,  rescinded  the  con- 
tract and  determined  to  go  back  from  the  wharf  to  the  street.  What 
then  were  his  rights?  They  were,  m  my  opinion,  no  more  and  no  less 
than  they  would  have  been  if  he  had  landed  from  his  own  boat  at  the 
company's  wharf.  He  was  on  private  property.  He  had  not  been  forced 
or  entrapped  there.  He  had  entered  it  of  his  own  free  will  and  with  the 
knowledge  that  the  only  exit  on  the  land  side  was  through  the  turn- 
stile, operated  as  a  part  of  the  company's  SN-stem  of  collecting  fares 
in  the  manner  I  have  mentioned.  If  he  wished  to  use  the  turnstile  as  a 
means  of  exit  he  could  only  do  so  on  complying  with  the  usual  condi- 
tions on  which  the  company  opened  them.  The  company  were  lawfully 
entitled  to  impose  the  condition  of  a  penny  payment  on  all  who  used 
the  turnstiles,  whether  they  had  traveled  by  the  company's  steamers 
or  not,  and  they  were  under  no  obligation  to  make  an  exception  in  the 
plaintiff's  favor.  The  company,  therefore,  being  lawfully  entitled  to 
impose  that  condition,  and  the  plaintiff  being  free  to  pass  out  through 
the  turnstile  at  any  time  on  complying  with  it,  he  had  only  himself  to 
blame  for  his  detention,  and  there  was  no  imprisonment  of  which  he 
could  legally  complain.  Next,  had  he  the  right  to  force  his  way  through 
the  narrow  space  between  the  turnstile  and  the  bulkhead?  Clearly 
he  had  not.  If  the  turnstile  had  filled  the  whole  space  between  the 
bulkheads,  it  could  not  be  contended  that  the  plaintiff  would  have 
been  entitled  to  break  it  open  in  order  to  pass  through.  The  company's 
officers  were,  in  my  opinion,  entitled  to  regard  the  turnstile  as  block- 


SECT.   IV.]        HERD   V.  WEARDALE  STEEL,  COAL  &   COKE  CO.,   LTD.      639 

ing  the  whole  space,  not  only  for  the  necessary  protection  of  the  mechan- 
ism of  the  turnstiles  from  injury,  but  also  because  it  was  a  necessary 
part  of  their  system  of  collecting  fares  on  entry  and  exit  that  the 
turnstile  should  be  an  eflPective  barrier  against  entry  and  exit  of  any 
person  except  on  the  company's  conditions.  They  were,  therefore, 
entitled  to  prevent  the  plaintiff  from  squeezing  through  the  space  in 
question,  and  were  justified  in  meeting  the  plaintiff's  forcible  attempt 
with  as  much  force  as  was  reasonably  necessary  to  defeat  it.  It  is  not 
alleged  that  they  did  more,  and  any  assault  they  may  have  committed 
on  the  plaintiff  under  these  circumstances  was  justified.  In  this  con- 
nection I  may  observe  that  it  is  not  necessary  to  determine  whether  or 
not  this  justification  is,  strictly  speaking,  open  to  the  company  on  the 
pleadings.  The  case  has  been  conducted  all  through  on  the  footing 
that  it  is  open,  and,  if  it  were  necessary,  the  court  would  make  any 
amendment  required  to  formally  shape  the  issues  in  accordance  with 
the  way  in  which  both  parties  regarded  them  at  the  trial.  .  .  .  Taking 
then,  the  whole  facts  in  this  case  together,  the  plaintiff,  in  my  opinion, 
was  not  entitled  to  succeed,  and  the  verdicts  which  the  jury  returned 
in  his  favor  must  be  set  aside.  The  only  remaining  question  is,  whether 
this  court  should  grant  a  new  trial,  or  order  the  verdict  to  be  entered 
for  the  defendants.  The  court  may  make  any  order  which  the  Supreme 
Court  ought  to  have  made  in  the  first  instance.  That  court  ought,  in 
my  opinion,  to  have  directed  a  verdict  to  be  entered  for  the  defendants. 
All  the  material  facts  were  before  them  as  they  have  been  before  us. 
It  is  impossil)le  that  any  jury  could  on  those  facts  find  a  verdict  for  the 
plaintiff  which  could  stand  for  one  moment  if  questioned.  The  ver- 
dict ought  therefor,  to  have  been  entered  for  the  defendants,  and  this 
court  must  now  order  accordingly  that  the  verdict  for  the  plaintiff  be 
set  aside  and  judgment  be  entered  for  the  defendants. 


\    HERD  V.  WEARDALE  STEEL,  COAL  &  COKE  CO.,  LTD.; 

Court  of  Appeal,  1913. 

[Reported  (1913)  3  K.  B.  771.] 

Buckley,  L.  J.  The  plaintiff  is  a  coal  miner.  The  defendants  are 
the  colliery  company  in  whose  employment  he  was,  and  the  manager 
of  the  colliery  and  an  overman  at  the  colliery.  The  action  is  brought 
for  damages  for  false  imprisonment.  The  plaintiff  by  his  particulars 
says  that  the  defendants  "by  their  orders  wrongfully  prevented  the 
plaintiff  from  using,  and  wrongfully  refused  the  use  of,  the  said  cage 
to  the  plaintiff,  whereby  the  plaintiff  was  falsely  imprisoned."  The 
.  action  was  tried  at  Newcastle  before  Pickford,  J.,  without  a  jury,  and 
the  judgment  was  delivered  at  Leeds.    No  evidence  was  called.    I  regret 


G40       HERD  T.  WEARDALE  STEEL,  COAL  &  COKE  CO.,   LTD.      [cHAP.  V. 

that  that  is  so,  because  we  have  to  get  the  facts  as  best  we  can  from 
the  opening  speech  of  counsel  for  the  plaintiff,  coupled  Tvath  some 
statements  by  way  of  admission  and  qualification  made  by  counsel 
for  the  defendants.  I  will  state  as  accurately  as  I  can  the  material 
facts  which  I  have  gathered  from  those  speeches. 

The  plaintiff  went  down  the  mine  on  a  shift  at  about  half  past  nine 
in  the  morning.  The  shift  would  be  o^er  and  he  would  be  entitled  to 
come  up  again  at  about  4  p.  M.  The  plaintiff  and  two  other  men  were 
ordered  to  do  certain  work.  The  men  said  that  it  was  work  which  they 
could  not  be  called  upon  to  do,  and  they  refused  to  do  it.  At  a  later 
date  it  was  determined  by  a  court  of  summary  jurisdiction  that  the 
men  were  wrong,  but  in  my  opinion  that  does  not  really  affect  this 
case.  The  result  of  the  refusal  of  these  three  men  to  work  was  that 
twenty-nine  other  men,  out  of  sympathy  with  them,  also  refused  to 
work.  The  men,  the  twenty-nine  and  the  three,  thereupon  made  their 
way  to  the  bottom  of  the  shaft,  and  arrived  there  at  about  eleven  o'clock. 
The  cage  was  then  and  until  one  o'clock  engaged  in  winding  coal,  and 
while  that  is  being  done  it  is  illegal  to  carry  men  in  the  cage.  At  one 
o'clock  it  ceased  to  wind  coal.  At  that  moment,  as  of  course  would 
be  the  case,  there  was  one  cage  at  the  surface  and  another  at  the 
bottom.  There  were  some  lads  at  the  surface  whom  the  manager 
desired  to  luring  down.  He  could  not  bring  them  down  except  by  hauling 
up  at  the  same  time  the  cage  which  was  at  the  bottom,  and  if  that  had 
been  done  the  plaintiff  could  have  gone  up  in  that  cage.  Eight  men 
out  of  the  twenty-nine  took  their  seats  in  the  cage,  although  I  believe 
they  were  told  not  to  do  so.  The  cage  was  not  started.  That  state  of 
things  continued  for  about  twenty  minutes.  At  the  end  of  that  time  the 
desire  to  send  the  boys  down  prevailed  over  the  desire  not  to  bring  the 
men  up.  The  plaintiff  was  told  that  if  he  liked  he  might  get  into  the 
cage  as  it  was  going  up.  The  cage  went  up,  and  he  got  to  the  surface 
and  went  away.  These,  so  far  as  I  can  gather  them,  are  the  material 
facts.  The  plaintiff  says,  "  The  cage  was,  or  ought  to  have  been,  at  my 
disposal  twenty  minutes  before  the  time  at  which  in  point  of  fact  it 
was  placed  at  my  disposal.  I  was  falsely  imprisoned  for  twenty  min- 
utes." It  makes  no  difference,  of  course,  that  it  was  only  for  a  short 
period  of  time.  If  he  was  falsely  imprisoned  for  a  time,  although  it 
may  have  been  short,  he  is  entitled  to  damages. 

The  question  for  decision  is,  were  the  defendants  guilty  of  false 
imprisonment?  Upon  that  question  there  are  two  things  to  be  deter- 
mined. First,  was  there  an  imprisonment?  If  that  be  answered  in  the 
affirmative,  the  further  question  arises,  was  it  a  false  inprisonment? 
If  the  first  question  is  answered  in  the  negative,  the  second  question  does 
not  arise.  False  imprisonment  is  wholly  a  matter  in  tort,  but,  for 
reasons  which  will  liecome  apparent  presently,  I  am  going  to  consider 
the  plaintiff's  rights  in  contract  as  well  as  his  rights  and  remedies  in 
tort. 


SECT.   IV.]      HERD  V.  WEARDALE  STEEL,  COAL  &   COKE  CO.,   LTD.      641 

I  conceive  that  the  plaintiff's  rights  in  contract  were  these.  He  had 
been  taken  by  his  employers  down  the  sliaft  to  his  work  to  a  place  from 
which  it  was  impossible  to  return  except  by  the  cage.  It  results,  I 
think,  that  the  law  will  imply  in  the  contract  a  term  that  he  shall  be 
restored  from  the  place  to  which  he  had  been  taken  to  the  surface  at  a 
proper  time.  It  is  said  that  that  ought  to  be  any  reasonable  time. 
That  is  only  another  way  of  saying  that  in  the  contract,  although, not 
expressed,  it  is  implied  by  law  that  the  plaintiff  shall  be  brought  back 
to  the  surface  at  such  time  as  it  must  have  been  in  the  contemplation 
of  the  contracting  parties  that  he  should  be  brought  back.  What 
would  that  include?  Obviously  it  would  include  that  when  the  plain- 
tiff's shift  was  over  he  should  l)e  brought  back;  also,  if  he  were  ill. 
These  are  but  instances.  It  would  include  as  an  implied  term  that  he 
should  be  brought  to  the  surface  at  any  such  time  as  it  must  have 
been  fairly  within  the  contemplation  of  the  contracting  parties  that 
he  should  be  brought  back.  But  it  would  not  include  an  implied  term 
that  he  should  be  brought  back  at  whatever  time  he  liked.  His  right 
was  to  be  brought  back  at  such  a  time  as  the  parties  must  have  con- 
templated as  a  proper  time.  After  the  plaintiff  had  been  in  the  mine  for 
a  short  time  he  committed  a  breach  of  his  contract  in  refusing  to  do 
his  work,  and  he  then  demanded  to  be  taken  to  the  surface,  a  thing 
which  was  outside  his  contract.  Being  a  person  who  had  broken  his 
contract,  he  had,  shall  I  say,  the  assurance  to  ask  his  employers  to 
assist  him  in  carrying  that  breach  of  contract  into  effect,  that  is  to  say, 
to  assist  him  in  cutting  short  the  period  of  seven  hours  during  which 
he  ought  to  have  stayed  down,  by  taking  him  up  to  the  surface  at  that 
moment.  01)\"iously  there  was  no  implied  term  in  the  contract  requir- 
ing the  employers  to  do  that.  Therefore,  at  the  time  when  the  plaintiff 
desired  to  be  taken  to  the  surface  he  had  no  contractual  right  to  call 
upon  his  employers  to  afford  him  the  necessary  facilities,  and  as  far 
as  the  contract  between  the  parties  was  concerned  the  defendants 
were  entitled  to  refuse  to  do  so. 

What  were  the  plaintiff's  rights  in  tort?  In  the  words  of  Patteson, 
J.,  in  Bird  r.  Jones,  7  Q.  B.,  at  p.  751,  he  had  the  right  to  say,  "  If  one 
man  compels  another  to  stay  in  any  given  place  against  his  will,  he 
imprisons  that  other  just  as  much  as  if  he  locked  him  up  in  a  room." 
But  is  it  true  to  say  that  the  defendants  compelled  the  plaintiff  against 
his  will  to  remain  in  the  mine  and  imprisonefl  him?  To  my  mind  it  is 
not.  It  is  true  that  he  could  not  leave  the  place;  but  he  was  detaincfl 
there,  not  by  any  act  of  the  defendants,  but  by  a  certain  physical 
difficulty  arising  from  the  situation  of  the  place,  a  difficulty  which  the 
plaintiff  was,  as  between  himself  and  his  employers,  contractually 
entitled  to  call  upon  them  to  remove  for  him  at  a  time,  but  not  at  that 
time.  What  kept  him  from  getting  to  the  surface  was  not  any  act  which 
the  defendants  did,  l)ut  the  fact  that  he  was  at  the  bottom  of  a  deep 
shaft,  and  that  there  were  no  means  of  getting  out  other  than  the  par- 


642      HERD   V.  WEARDALE  STEEL,  COAL  &   COKE  CO.,   LTD.       [cKAP.  V. 

ticular  means  which  belonged  to  liis  employers  and  over  which  the 
plaintiff  had  contractual  rights  which  at  that  moment  were  not  in 
operation.  He  had  no  right  to  say  to  tiie  defendants  at  that  moment, 
"You  are  preventing  me  from  getting  out  of  the  mine."  The  defend- 
ants' reply  would  be,  "We  are  not  preventing  you  from  getting  out; 
get  out  by  all  means  if  you  can.  But  you  are  not  entitled  to  call  upon  us 
to  take  you  out  when  contractually,  as  between  you  and  us,  we  are  not 
bound  to  do  so.  You  are  calling  upon  us  to  assist  you  in  your  breach 
of  contract  l)y  taking  you  out.  We  are  bound  l^y  contract  to  do  so  at 
a  time,  but  not  at  this  time."  From  that  it  follows,  in  my  opinion, 
that  there  was  no  imprisonment  of  the  plaintiff  by  the  defendants. 
The  passage  from  the  judgment  of  Patteson,  J.,  in  Bird  v.  Jones,  7 
Q.  B.,  at  p.  751,  cannot  be  read  as  if  it  said  that  if  one  man  declines  to 
give  another  man  facilities  for  leaving  a  place  which  he  desires  to  leave 
he  imprisons  him.  He  does  not  do  so.  He  imprisons  him  if  he  prevents 
him  from  lea\ang;  but  he  does  not  imprison  him  because  he  does  not 
assist  him  to  come  out.  The  two  propositions  are  perfectly  different, 
the  one  from  the  other. 

It  will  be  seen  from  what  I  have  said  that  there  is  in  my  view  no 
occasion  to  say  anything  as  to  the  other  part  of  the  argument,  namely, 
as  to  whether  the  plaintiff  had  committed  an  offense,  and,  if  he  had, 
whether  it  was  a  statutory  offense,  and  whether  he  was  punishable  by 
a  penalty  for  what  he  had  done.  The  defendants  do  not  contend  that 
they  were  entitled  to  imprison  the  plaintiff  because  he  had  committed 
an  offense.  The  argument  for  the  defendants  at  the  trial  was  really 
addressed  to  the  plaintiff's  rights  by  way  of  contract.  The  defendants 
were,  no  doubt,  sa^t^ing,  "We  were  not  bound  to  wind  the  engine  for 
vou  in  these  circumstances,  because  as  between  vou  and  us  you  had 
no  right  to  go  to  the  surface.  You  ought  to  have  been  doing  your 
work."  The  defendants  did  in  that  sense  say  that  they  were  not 
going  to  assist  the  plaintiff  to  get  out;  but  they  never  said  that  they 
were  going  to  punish  the  plaintiff  for  an  offense  which  according  to  their 
^^ew  he  had  committed.  I  will  read  two  passages  from  the  shorthand 
note  of  Mr.  Mitchell  Innes'  argument  at  the  trial  which  clearly  show 
the  position  taken  up  by  the  defendants.  He  said:  "The  company 
have  always  insisted  that  under  that  contract  they  were  entitled  to 
offer  that  man  the  cage  at  the  end  of  that  shift  and  at  no  other  time. 
He  went  down  there  under  an  agreement  to  work  for  that  length  of 
time;  that  implies  the  further  proposition  that  he  was  not  entitled  as 
of  right  to  leave  his  work  until  the  shift  was  at  an  end. "  Speaking  for 
myself,  it  appears  to  me  that  that  passage  accurately  states  the  posi- 
tion. It  is  perfectly  correct  to  say  that  under  the  contract  between  the 
plaintiff  and  his  employers  he  was  not  entitled  to  call  upon  them  to  use 
the  cage  for  him  till  he  had  performed  his  work,  or  until  some  of  the  cir- 
cumstances which  I  have  mentioned  had  arisen.  The  other  passage 
is  as  follows :  "  He  went  down  to  work  for  a  shift,  and  until  that  shift  is 


SECT.   IV.]      HERD  V.  WEARDALE  STEEL,  COAL  &   COKE  CO.,   LTD.      B43 

over  he  may  not  come  up."  Of  course  that  means,  as  between  the  man 
and  his  employers,  he  may  not  come  up.  "  There  is  nothing  in  the  cir- 
cumstances of  this  case,  and  the  facts  of  this  case,  I  respectfully  submit, 
that  can  afford  foundation  for  the  proposition  that  he  has  shown  any 
title  to  ascend  by  the  cage  at  any  time 'during  the  shift,  or  that  we  have 
done  anything  which  disentitles  us  to  enforce  that  term  of  our  contract 
which  entitles  us  to  refuse  him  the  cage  until  he  has  performed  liis 
part  of  the  contract  and  done  his  work  for  seven  hours."  Again,  that 
is  entirely  upon  his  contractual  rights.  "He  has  shown  no  title  to 
ascend.  He  has  shown  no  right  to  call,  by  way  of  specific  performance, 
if  that  were  possiljle,  upon  the  master  to  wind  the  cage  for  him  because 
he  is  entitled  to  come  up.  He  has  done  nothing  which  disentitles  us  to 
enforce  that  term  of  our  contract  which  entitles  us  to  refuse  him  the 
cage." 

The  question  may  be  tested  in  another  way.  Suppose  that 'at  the 
end  of  the  shift,  when  there  would  be  a  contractual  right  on  the  part  of 
the  man  to  come  up,  the  master  were  to  say  that  it  was  not  conven- 
ient to  bring  the  man  up  at  that  time  and  that  he  must  remain  in  the 
pit  for  another  hour,  the  man  would  be  entitled  to  damages  for  breach 
of  contract,  but  would  there  be  any  false  imprisonment?  In  my 
opinion  there  would  not.  The  master  has  not  imprisoned  the  man. 
He  has  not  enabled  him  to  get  out  as  under  the  contract  he  ought  to 
have  done,  but  he  has  done  no  act  compelling  him  to  remain  there. 

I  only  wish  to  add  that  if  it  were  supposed  that  in  the  judgment  which 
I  have  delivered  I  have  affirmed  in  any  degree  any  right  on  the  part  of 
the  master  to  inflict  by  way  of  punishment  upon  the  man  for  not  doing 
his  work  the  penalty  that  the  man  shall  stay  in  an  assigned  place  for  an 
assigned  time,  I  have  wholly  failed  to  convey  my  meaning.  I  mean 
nothing  of  the  sort.  The  master  has  no  right  to  compel  the  man,  by 
way  of  penalty  or  punishment,  to  suffer  an  inconvenience  by  staying 
down  a  mine.  That  is  not  the  question  in  this  case.  The  question  is 
whether  the  defendants  falsely  imprisoned  the  plaintiff.  To  my  mind, 
they  did  not  imprison  him,  because  they  did  not  keep  him  there;  the\' 
only  abstained  from  giving  him  facilities  for  getting  away. 

I  conclude  by  calling  attention  to  the  fact,  which  is  really  of  the 
essence  of  the  matter,  that  this  is  not  an  action  in  contract,  but  in  tort, 
and  in  tort  the  question  is  whether  the  defendants  did  anything  to 
compel  the  plaintiff  to  remain  in  the  mine,  and  whether  they  impris- 
oned him.  In  my  opinion  the  defendants  did  not  imprison  the  plaintiff; 
all  that  they  did  was  to  refrain  from  giving  him  a  facility  which  in  the 
circumstances  they  were  not  bound  to  give  him. 

For  these  reasons  I  am  of  opinion  that  this  appeal  succeeds.^ 

^  The  concurring  opinion  of  Hamilton,  L.  J.,  and  the  dissenting  opinion  of 
Vaughan  Williams,  L.  J.,  are  omitted. — Ed. 


644  REGINA  V.   DADSON.  [CHAP.  V. 


SECTION  V. 

Action  in  Pursuance  of  Permissio7i, 

REGIXA   V.  DADSON. 
CKOw^'  Case  Reserved.     1850. 

[Repoilfd  4  Cox  C.  C.  358.] 

The  prisoner  was  tried  and  convicted  before  Erle,  J.,  at  the  last 
Maidstone  Assizes,  but  the  learned  judge,  entertaining  some  doubt  as 
to  tlie  propriety-  of  the  conviction,  reserved  the  following  case  :  — 

George  Dadson  was  indicted  for  shooting  at  WilUam  Waters,  with 
intent  to  do  him  grievous  bodil}-  harm.  It  appeared  that  he,  being  a 
constable,  was  emplo^-ed  to  guard  a  copse,  from  which  wood  had  been 
stolen,  ant]  for  this  jnirpose  carried  a  loaded  gun.  From  this  copse  he 
saw  the  prosecutor  come  out,  carrying  wood,  which  he  was  stealing, 
and  called  to  him  to  stop.  The  prosecutor  ran  awa}',  and  the  prisoner, 
having  no  other  means  of  bringing  him  to  justice,  fired,  and  wounded 
him  in  the  leg.  These  were  the  facts  on  which  the  prisoner  acted.  It 
was  alleged  in  addition  that  Waters  was  actually  committing  a  felony, 
he  having  been  before  convicted  repeatedly  of  stealing  wood,  but  these 
convictions  were  unknown  to  the  prisoner,  nor  was  there  anj'  reason 
for  supposing  that  he  knew  the  ditference  between  the  rules  of  law 
relating  to  felony  and  those  relating  to  less  offences.  I  told  the  jury 
that  shooting  with  intent  to  wound  amounted  to  the  felon}-  charged, 
unless  from  other  facts  there  was  a  justification  ;  and  that  neither  the 
belief  of  the  prisoner  that  it  was  his  duty  to  fire  if  he  could  not  otlier- 
wise  apprehend  the  prosecutor,  nor  the  alleged  felon}',  it  being  unknown 
to  him,  constituted  such  justification.  Upon  this  the  prisoner  was  con- 
victed of  felon}-,  and  let  out  on  his  recognizances  to  come  up  for  judgment, 
if  ]-equired.  I  have  to  request  the  opinion  of  the  judges  whether  this 
conviction  was  right. 

[Tills  case  stood  for  argument  on  AVednesday,  November  20,  but  no 
counsel  were  instructed.  For  the  legal  distinction  adverted  to  in  the 
case  with  regard  to  the  apprehension  of  felons  and  misdemeanants  only, 
see  1  Hale,  481  •  4  Bl.  Com.  179  ;  Fost.  271  ;  R.  v.  Smith,  1  Russ.  on 
Cr.  o46.]  Cur.  adv.  vult. 

Pollock,  C.  B.,  delivered  the  judgment  of  the  court.  (After  stating 
the  facts  as  above.)  We  are  all  of  opinion  that  the  conviction  is  right. 
The  i:)rosecutor  not  having  conmiitted  a  felony  known  to  the  prisoner 
at  the  time  when  he  fired,  tlie  latter  was  not  justified  in  firing  at  the 
prosecutor  ;  and  having  no  justifiable  cause,  he  was  guilty  of  shooting 
at  the  prosecutor  with  intent  to  do  him  grievous  bodily  harm,  and  the 
conviction  is  right.  Convictio7i  affirmed. 


SECT,  v.]  STRANG  V.   RUSSELL.  645 


STRANG  V.  RUSSELL. 

Supreme  Court  of  New  Zealand,  1904. 

[Reported  24  N.  Z.  L.  R.  916.] 

Cooper,  J.  This  is  an  action  in  which  the  plaintiff  claims  to  recover 
from  the  defendant  damages  for  trespass  alleged  by  the  plaintiff  to 
have  been  committed  by  the  defendant  upon  a  small  lake  or  lagoon 
known  as  the  Hokowhitee  Lagoon,  at  Palmerston  North,  and  claimed 
by  the  plaintiff  as  his  property.^ 

The  defendant  ...  in  cross-examination  by  Dr.  Findlay  said  that 
he  had  been  accustomed  to  boat  on  the  lagoon  for  over  three  years,  and 
had  not  been  warned  by  Strang,  although  he  had  often  met  him  on  the 
lagoon;  and  that  he  had  not  up  to  the  4th  of  September  received  any 
notice  from  Strang  that  he  claimed  the  right  to  exclude  him  from  the 
use  of  the  lagoon.  He  also  said  that  on  the  Sunday  succeeding  the  4th 
of  September  he  saw  Strang,  and  that  Strang  said  to  him,  "  You  are  at 
liberty  to  go  on  the  lagoon  whenever  you  like,  Russell,  or  any  other 
respectable  person." 

One  of  the  defenses  submitted  on  behalf  of  the  defendant  was  that, 
even  if  the  plaintiff  owned  the  bed  of  the  lagoon  and  had  the  right 
to  exclude  others  from  boating  upon  it,  the  defendant  had  the  plaintiff's 
implied  leave  and  license  to  go  on  the  lagoon  on  the  4th  of  September, 
that  that  leave  and  license  had  not  been  withdrawn,  and  that  there- 
fore no  trespass  had  l)een  committed.  But,  in  my  opinion,  this  defense 
cannot  prevail.  The  defendant,  in  going  on  the  lagoon  on  the  4th  of 
September  with  Bell,  went  there,  according  to  his  own  admission,  not 
because  of  any  leave  or  license  which  may  have  been  given  to  him  by 
the  plaintiff,  but  under  a  claim  of  right  to  do  so  as  a  riparian  proprietor, 
having  found  out  that  the  plaintiff  claimed  to  have  bought  the  lagoon, 
and  for  the  express  purpose  of  contesting  the  plaintiff's  legal  right  to 
ownership  of  the  bed  of  the  lagoon.  He,  in  fact,  proceeded  on  the  4th 
of  September  along  the  lagoon  not  in  pursuance  of  any  implied  per- 
mission given  to  him  by  the  plaintiff,  but  in  the  exercise  of  a  presumed 
legal  right  adverse  to  the  plaintiff's  claim  as  an  owner,  and  with  the 
intention  of  contesting  the  plaintiff's  right  as  alleged  owner  of  the 
lagoon. 

^  Part  of  the  opinion  only  is  given.  —  Ed. 


646  THE  SIX  carpenters'  case.  [chap.  v. 


THE  SIX  CARPENTERS'   CASE. 
King's  Bench,  1610. 
[Reported  8  Co.  146  a.] 

In  trespass  brought  by  John  Vaux  against  Thomas  Newman,  car- 
penter, and  five  other  carpenters,  for  breaking  his  house,  and  for  an 
assault  and  battery,  1  Sept.  7  Jac.  in  London,  in  the  parish  of  St.  Giles 
extra  Cripplegate,  in  the  ward  of  Cripplegate,  &c.  and  upon  the  new 
assignment,  the  plaintiff  assigned  the  trespass  in  a  house  called  the 
Queen's  Head.  The  defendants  to  all  the  trespass  proeter  fradionem 
domus  pleaded  not  guilty;  and  as  to  the  breaking  of  the  house,  said, 
that  the  said  house  prwd'  tempore  quo,  &c.  et  diu  antea  et  postea, 
was  a  common  Wine  Tavern,  of  the  said  John  Vaux,  with  a  common 
sign  at  the  door  of  the  said  house  fixed,  &c.  by  force  whereof  the  de- 
fendants, prwd'  tempore  quo,  &c.  viz.  hora  quarta  post  meridiem  into  the 
said  house,  the  door  thereof  being  open,  did  enter,  and  did  there  buy 
and  drink  a  quart  of  wine,  and  there  paid  for  the  same,  &c.  The 
plaintiff,  by  way  of  replication,  did  confess,  that  the  said  house  was  a 
common  tavern,  and  that  they  entered  into  it,  and  bought  and  drank  a 
quart  of  wine,  and  paid  for  it:  but  further  said,  that  one  John  Ridding, 
servant  of  the  said  John  Vaux,  at  the  request  of  the  said  defendants, 
did  there  then  deliver  them  another  quart  of  wine,  and  a  pennyworth 
of  bread,  amounting  to  M.  and  then  they  there  did  drink  the  said 
wine,  and  eat  the  bread,  and  upon  request  did  refuse  to  pay  for  the 
same:  upon  which  the  defendants  did  demur  in  law:  and  the  only 
point  in  this  case  was,  if  the  denying  to  pay  for  the  wine,  or  non-pay- 
ment, which  is  all  one  (for  every  non-payment  upon  request,  is  a 
denying  in  law)  makes  the  entry  into  the  tavern  tortious. 

And,  first,  it  was  resolved  when  an  entry,  authority,  or  license, 
is  given  to  any  one  by  the  law,  and  he  doth  abuse  it,  he  shall  be  a 
trespasser  ah  initio:  l)ut  where  an  entry,  authority,  or  license,  is 
given  by  the  party,  and  he  abuses  it,  there  he  must  be  punished  for 
his  abuse,  but  shall  not  be  a  trespasser  ah  initio.  And  the  reason  "of 
this  difference  is,  that  in  the  case  of  a  general  authority  or  license 
of  law,  the  law  adjudges  by  the  subsequent  act,  quo  animo,  or  to  what 
intent,  he  entered;  for  acta  ezteriora  iiidicant  interiora  secreta.  Vide 
11  H.  4.  75  b.  But  when  the  party  gives  an  authority  or  license  him- 
self to  do  any  thing,  he  cannot,  for  any  subsequent  cause,  punish  that 
which  is  done  l)y  his  own  authority  or  license.  And  therefore  the  law 
gives  authority  to  enter  into  a  common  inn,  or  tavern,  so  to  the  lord 
to  distrain;  to  the  owner  of  the  ground  to  distrain  damage-f easant ; 
to  him  in  reversion  to  see  if  waste  be  done;  to  the  commoner  to  enter 


i 


SECT,  v.]  OXLEY  V.  WATTS.  647 

upon  the  land  to  see  his  cattle,  and  such  like.  Vide  12  E.  4.  8  b.  21 
E.  4.  19  b.  5H.  7.  11  a.  9  H.  6.  29  b.  11  H.  4.  75  b.  3  H.  7.  15  b. 
28  H.  6.  5  b.  But  if  he  who  enters  into  the  inn  or  tavern  doth  a  tres- 
pass, as  if  he  carries  away  any  thing;  or  if  the  lord  who  distrains 
for  rent,  or  the  owner  for  damage-feasant,  works  or  kills  the  dis- 
tress; or  if  he  who  enters  to  see  waste  breaks  the  house,  or  stays 
there  all  night;  or  if  the  commoner  cuts  down  a  tree,  in  these  and 
the  like  cases,  the  law  adjudges  that  he  entered  for  that  purpose;  and 
because  the  act  which  demonstrates  it  is  a  trespass,  he  shall  be  a  tres- 
passer ab  initio,  as  it  appears  in  all  the  said  books.  So  if  a  purveyor 
takes  my  cattle  by  force  of  a  commission,  for  the  King's  house,  it  is 
lawful:  but  if  he  sells  them  in  the  market,  now  the  first  taking  is 
wrongful;  and  therewith  agrees  18  H.  6.  19  b.    Et  sic  de  similibus. 

2.  It  was  resolved  per  totam  curiam,  that  not  doing,  cannot  make 
the  party  who  has  authority  or  license  by  the  law  a  trespasser  ab  initio, 
because  not  doing  is  no  trespass;  and,  therefore,  if  the  lessor  distrains 
for  his  rent,  and  thereupon  the  lessee  tenders  him  the  rent  and  arrears, 
&c.  and  requires  his  beasts  again,  and  he  will  not  deli\'er  them,  this  not 
doing  cannot  make  him  a  trespasser  ab  initio;  and  therewith  agrees 
33  H.  6.  47  a.  So  if  a  man  takes  cattle  damage-feasant,  and  the  other 
offers  sufficient  amends,  and  he  refuses  to  re-deliver  them,  now  if  he 
sues  a  Reple\'in,  he  shall  recover  damages  only  for  the  detaining 
of  them,  and  not  for  the  taking,  for  that  was  lawful;  and  therewith 
agrees  F.  N.  B.  69  g.  temp.  E.  1.  Replevin  27.  27  E.  3.  88.  45  E.  3.  9. 
So  in  the  case  at  bar,  for  not  paying  for  the  wine,  the  defendants 
shall  not  be  trespassers,  for  the  denying  to  pay  for  it  is  no  trespass, 
and  therefore  they  cannot  be  trespassers  ab  initio;  and  therewith 
agrees  directly  in  the  point  12  Edw.  4.  9b.  For  there  Pigot,  Serjeant, 
puts  this  very  case,  if  one  comes  into  a  tavern  to  drink,  and  when  he 
has  drunk  he  goes  away,  and  will  not  pay  the  taverner,  the  taverner 
shall  have  an  action  of  trespass  against  him  for  his  entry.  To  which 
Brian,  C.  J.,  said,  the  said  case  which  Pigot  has  put,  is  not  law,  for  it 
is  no  trespass,  but  the  taverner  shall  have  an  action  of  debt. 


OXLEY  V.   WATTS. 
King's  Bench,  1785. 
[Reported  1  T.  R.  12.] 

This  was  an  action  of  trespass  for  taking  a  horse,  tried  before  Lord 
Mansfield,  at  the  last  Summer  Assizes,  at  Maidstone. 

The  defendant,  as  bailiff  of  Lord  Dartmouth,  lord  of  the  manor  of 
A.,  justified  taking  the  said  horse  as  an  estray. 


648  ALLEN  V.   CROFOOT.  [CHAP.  V. 

Replication,  that  after  the  taking  mentioned  in  the  declaration,  the 
defendant  worked  the  said  horse,  and  so  became  a  trespasser  ab 
initio. 

Erskine  now  moved  to  set  aside  the  verdict  which  had  been  obtained 
by  the  plaintiff,  on  the  ground  that  this  should  have  been  an  action 
on  the  case  for  the  consequential  damage,  and  not  an  action  of  tres- 
pass, because  the  original  taking  was  admitted  to  be  lawful. 

But  per  curiam,  The  subsequent  usage  is  an  aggravation  of  the 
trespass  in  taking  the  horse;  for  the  using  made  him  a  trespasser  ah 
initio.  Vid.  Taylor  v.  Cole,  3  T.  R.  292. 

Rule  refused. 


ALLEN  V.   CROFOOT. 
Supreme  Court,  New  York,  1830. 

[Reported  5  Wend.  506.] 

Error  from  the  Cortland  common  pleas.  Crofoot  sued  Allen  in  a 
justice's  court,  and  declared  against  him  in  trespass  for  entering  his 
house  in  his  absence  and  obtaining  copies  of  papers  for  the  purpose  of 
commencing  a  suit  against  him.  The  defendant  pleaded  the  general 
issue  and  license  to  enter  the  house.  The  cause  was  tried]  by]  a  jury, 
who  found  a  verdict  for  the  plaintiff  for  $50,  for  which  sum  and  the 
costs  of  suit  (as  stated  in  the  return)  the  justice  gave  judgment.  The 
defendant  appealed  to  the  Cortland  common  pleas,  and  on  the  trial  in 
that  court  the  following  facts  appeared :  There  had  been  an  arbitration 
between  one  Parsons  and  Crofoot,  and  an  award  had  been  made  in  favor 
of  Parsons.  Allen  was  the  attorney  of  Parsons,  and  on  receiving  from 
Crofoot  the  sum  of  money  awarded,  delivered  up  to  him  his  bond  and 
the  award.  At  the  time  of  payment,  something  was  said  about  fur- 
ther claims  that  Parsons  had  against  Crofoot,  which  the  latter  said  he 
would  not  pay.  After  this,  it  seems  that  Allen  thought  he  had  done 
wrong  in  delivering  up  the  bond  and  award,  and  went  to  the  house  of 
Crofoot  in  his  absence  to  take  copies  of  the  bond  and  award,  under  the 
pretense  that  he  was  subpoenaed  as  a  witness  and  wanted  to  refresh  his 
memory  as  to  the  transactions,  when  in  fact  his  object  was  to  obtain 
copies  for  the  purpose  of  commencing  a  suit  against  Crofoot,  which 
subsequently  was  commenced.  This  excuse  he  made  to  a  brother-in- 
law  of  the  plaintiff,  to  prevent  him  from  taking  the  papers  from  him; 
the  brother-in-law  having  gone  into  the  room  where  he  was  copying 
the  papers,  at  the  request  of  the  j^laintitt's  wife,  who  was  greatly  agi- 
tated.   It  was  shown  that  the  defendant  had  admitted  that  he  would  not 


SECT.  \.]  ALLEN  V.   CROFOOT.  649 

have  got  the  copies  had  he  not  practised  a  deception  upon  the  plain- 
tiff's wife  and  brother-in-law,  and  that  he  went  to  the  plaintiff's  house 
in  his  absence,  knowing  that  had  he  been  at  home  he  could  not  have 
obtained  copies  of  the  papers.  It  further  appeared,  that  when  he  went 
to  the  house  of  the  plaintiff,  the  defendant  knocked  at  the  door  and 
was  bidden  to  come  in ;  and  that  he  was  on  terms  of  intimacy  with  the 
plaintiff,  and  in  the  habit  of  resorting  to  his  house.  The  court  charged 
the  jury,  that  if  they  should  be  of  opinion  that  the  defendant  had  acted 
unfairly  or  improperly  in  obtaining  copies  of  the  papers,  and  had  gone 
to  the  plaintiff's  house  with  the  intention  of  fraudulently  obtaining  such 
copies,  though  he  had  leave  to  enter  the  house,  they  should  find  for  the 
plaintiff;  but  if  he  acted  correctly  and  openly,  and  had  leave  to  enter 
the  house,  they  should  find  for  the  defendant.  The  defendant  excepted 
to  this  charge,  and  the  jury  found  a  verdict  for  the  plaintiff  with  $75 
damages.     The  defendant  sued  out  a  WT-it  of  error. ^ 

Savage,  C.  J.  It  is  also  urged  by  the  plaintiff  in  error,  that  the 
court  below  erred  in  charging  the  jury  that  the  action  was  sustainable, 
if  they  should  find  that  the  defendant  entered  the  plaintiff's  house 
fraudulently,  to  obtain  improperly  copies  of  papers  in  the  absence  of 
the  plaintiff.  It  was  decided  in  The  Six  Carpenters'  Case,  4  Co.  290, 
that  where  an  authority  to  enter  upon  the  premises  of  another  is 
given  by  law,  and  it  is  subsequently  abused,  the  party  becomes  a  tres- 
passer ab  initio;  but  where  such  authority  or  license  is  given  by  the 
party,  and  it  is  subsequently  abused,  the  party  guilty  of  the  abuse  may 
be  punished;  but  he  is  not  a  trespasser;  and  the  reason  of  the  difference 
is  said  to  be,  that  in  case  of  a  license  by  law,  the  subsequent  tortious 
act  shows  quo  animo  he  entered;  and  having  entered  with  an  intent  to 
abuse  the  authority  given  by  law,  the  entry  is  unlawful;  but  where 
the  authority  or  license  is  given  by  the  party,  he  cannot  punish  for 
that  which  was  done  by  his  own  authority.  AYhether  this  is  not  a  dis- 
tinction without  a  difference  of  principle,  it  is  not  necessary  to  inquire. 
A  better  reason  is  given  for  it  in  Bacon's  Abr.  tit.  Trespass,  B.  Where 
the  law  has  given  an  authority,  it  is  reasonable  that  it  should  make 
void  everything  done  by  the  abuse  of  that  authority,  and  leave  the 
abuser  as  if  he  had  done  everything  wnthout  authority.  But  where  a 
man,  who  was  under  no  necessity  to  give  an  authority,  does  so,  and  the 
person  receiving  the  authority  abuses  it,  there  is  no  reason  why  the 
law  should  interpose  to  make  void  everything  done  by  such  abuse,  be- 
cause it  was  the  man's  folly  to  trust  another  with  an  authority  who  was 
not  fit  to  be  trusted  therewith.  It  is  contended  that  the  license  being 
obtained  by  fraud  was  void.  The  defendant  knocked  at  the  door  and 
was  told  to  walk  in;  he  was  found  copying  certain  papers;  but  how  he 
obtained  them,  on  what  representation,  or  from  whom,  the  e^^dence 
does  not  disclose.  One  witness  does  indeed  testify  that  he  said  he  would 
not  have  got  the  copies,  if  he  had  not  practised  a  deception  on  the  wife 

*  Part  of  the  case,  involving  the  legality  of  the  app)eal  bond,  is  omitted.  —  Ed. 


650  SAMUEL  V.   PAYNE.  [CHAP.   V. 

and  brother-in-law  of  the  plaintiff.  If  this  declaration  should  be  con- 
sidered evidence  of  his  having  made  improper  representations  to  obtain 
the  papers,  then  the  question  arises,  does  he  thereby  become  a  tres- 
passer ab  initiof 

It  has  l)een  decided  that  to  enter  a  dwelling  house  without  license, 
is  in  law  a  trespass,  12  Johns.  R.  408,  and  that  possession  of  property 
obtained  fraudulently  confers  no  title.  Under  such  circumstances  no 
change  of  property  takes  place,  15  Johns.  R.  186;  and  it  is  argued  that 
as  fraud  vitiates  everything  into  which  it  enters,  a  license  to  enter  the 
house  fraudulently  obtained  is  void,  and  is  no  license.  The  principle 
of  relation  has  never  been  applied  to  such  a  case,  nor  is  it  necessary  for 
the  purposes  of  justice  to  extend  it  farther  than  to  cases  where  the 
person  enters  under  a  license  given  him  by  law.  In  such  cases,  as  the 
party  injured  had  not  the  power  to  prevent  the  injury,  it  seems  reason- 
able that  he  should  be  restored  to  all  his  remedies. 

The  judgment  must  be  reversed  without  costs,  and  a  venire  de  novo 
awarded  by  Cortland  common  pleas. 


SECTION   VI. 

Action  under  Mistake  as  to  Permission. 

SAMUEL  V.   PAYNE. 
Court  of  King's  Bench,  1780. 

[Reported  1  Doug.  359.] 

Action  of  trespass  and  false  imprisonment,  against  Payne,  a  con- 
stable, and  two  others.  The  facts  of  the  case  were  these:  Hall,  one 
of  the  defendants,  charged  the  plaintiff  with  having  stolen  some  laces 
from  him,  which  he  said  were  in  the  plaintiff's  house.  A  search  war- 
rant was  granted  by  a  justice  of  peace  upon  this  charge,  but  there  was 
no  warrant  to  apprehend  him.  On  the  search,  the  goods  were  not 
found;  however,  Payne,  Hall,  and  the  other  defendant,  an  assistant  of 
Payne's,  arrested  the  plaintiff,  and  carried  him  to  the  Poultry  Compter 
on  a  Saturday,  when  no  alderman  was  sitting,  by  which  means  he  was 
detained  till  Monday,  when,  after  examination,  he  was  discharged.  The 
cause  was  tried  before  Lord  Mansfield,  and  a  verdict  found  against  all 
the  three  defendants.  At  the  trial,  his  Lordship,  and  the  counsel  on  both 
sides,  looked  upon  the  rule  of  law  to  be,  tliat,  if  a  felony  has  actually 
})een  committed,  any  man,  upon  reasonable  probable  grounds  of  sus- 
picion, may  justify  apprehending  the  suspected  person  to  carry  him 


SECT.  VI.]  ELDER  V.  MORRISON.  651 

before  a  magistrate;  but  that,  if  no  felony  has  been  committed,  the 
apprehension  of  a  person  suspected  cannot  be  justified  by  anybody. 
His  Lordship  therefore  left  it  to  the  jury  to  consider,  whether  any 
felony  had  been  committed.  The  rule,  however,  was  considered  as 
inconvenient  and  narrow;  because,  if  a  man  charges  another  with  felony, 
and  requires  an  officer  to  take  him  into  custody,  and  carry  him  before 
a  magistrate,  it  would  be  most  mischievous  that  the  officer  should  be 
bound  first  to  try,  and  at  his  peril  exercise  his  judgment  on  the  truth, 
of  the  charge.  He  that  makes  the  charge  should  alone  be  answerable. 
The  officer  does  his  duty  in  carrying  the  accused  before  a  magistrate, 
who  is  authorized  to  examine,  and  commit  or  discharge. 

On  this  ground,  a  motion  was  made  for  a  new  trial,  and,  after  cause 
shown,  the  court  held,  that  the  charge  was  a  sufficient  justification  to 
the  constable  and  his  assistants,  and  cited  Ward's  Case  in  Clayton, 
(Clayt.  44.  pi.  76)  2  Hale's  Pleas  of  the  Crown,  84,  89,  91,  and  2 
Hawkins,  B.  2,  c.  12,  and  c.  13.^ 

The  rule  made  absolute.^ 


ELDER  V.  MORRISON. 
Supreme  Court,  New  York,  1833. 

[Reported  10  Wend.  128.] 

Error  from  the  Orange  common  pleas.  Morrison  sued  Elder  in 
an  action  of  assault  and  battery.  The  defendant  pleaded  the  general 
issue,  and  gave  notice  of  special  matter.  On  the  trial,  the  following 
facts  appeared:  The  plaintiff,  on  the  premises  of  one  Milburn,  offered 
for  sale  two  horses  at  public  auction,  in  pursuance  of  a  previous  notice. 
Woodward,  a  constable  of  Walkill,  having  in  his  hands  a  justice's 
execution  against  Milburn,  was  present  and  forbade  the  sale,  claiming 
the  horses  under  the  execution  and  demanding  possession  of  them, 
which  the  plaintiff  refused  to  yield.  Woodward  demanded  assistance 
from  the  bystanders;  no  one  obeying  him,  he  called  upon  the  defend- 
ant by  name  to  assist  him  in  obtaining  possession  of  the  horses,  and 

1  None  of  these  authorities  come  exactly  up  to  the  present  case,  which  is  there- 
fore the  first  determination  of  the  point.  In  AYard's  Case  (which  is  very  loosely 
reported),  it  would  seem,  that  the  goods  had  been  actually  stolen.  The  very  point 
of  this  case  had  been  agitated  on  a  demurrer  to  a  special  justification,  so  Ions;  ago 
as  the  reign  of  Hen.  I\'.  (Year  Book,  7  Hen.  IV.  {).  3.5.  pi.  3)  and  the  court  seems 
to  have  thought,  that,  if  the  cause  of  suspicion  should  appear  reasonable,  the  justifi- 
cation would  be  good,  though  no  felony  were  committed.  But  the  case  was  adjourned 
{vide  Ledwnck  v.  Catchpole,  B.  R.  E.  23  Geo.  III.    Cald.  291). 

^  The  new  trial  came  on  before  Lord  Mansfield,  at  the  sittings  after  this  term, 
when  a  verdict  was  found  against  Hall,  and  for  the  other  two  defendants. 


652  ELDER  V.  MORRISON.  [CHAP.  V. 

threatened  him  with  legal  proceedings  if  he  did  not  obey.  Woodward 
succeeded  in  obtaining  possession  of  one  of  the  horses,  and  then  he, 
the  plaintiff,  and  the  defendant  went  into  the  stable  where  the  other 
horse  was,  upon  which  a  struggle  ensued  as  to  who  should  have  the 
possession  of  that  horse,  in  the  course  of  which  the  defendant  jerked 
the  plaintiff  about,  who  had  hold  of  a  halter  which  was  upon  the  horse, 
elbowed  him  and  threw  him  down,  which  was  the  assault  and  battery 
complained  of.  The  defendant,  under  the  notice  attached  to  his  plea, 
proved  the  rendition  of  a  judgment  against  Milburn,  the  issuing  of  an 
execution  thereon,  and  a  deliver}^  of  the  writ  to  Woodward,  and  that 
by  virtue  thereof  and  of  another  execution  subsequently  received. 
Woodward,  who  was  indemnified  by  the  plaintiff  in  the  execution,  sold 
the  horses.  At  the  time  of  the  levy.  Woodward  inquired  of  Milburn 
where  his  horses  were,  who  pointed  out  the  horses  in  question.  The 
plaintiff  offered  to  prove  that  he  was  the  owner  of  the  horses  at  the  time 
of  the  taking  by  Woodward,  which  evidence  was  objected  to  by  the 
defendant,  but  the  objection  was  overruled  and  the  evidence  received; 
to  which  decision  the  defendant  excepted.  The  jury  found  a  verdict 
for  the  plaintiff  with  S25  damages,  on  which  judgment  was  rendered. 
The  defendant  sued  out  a  writ  of  error. 

Savage,  C.  J.  For  the  plaintiff  in  error,  it  is  argued  that  the  officer, 
when  indemnified  by  the  plaintiff  in  the  execution,  is  bound  to  sell  the 
property;  and  that  by  the  Re\ised  Statutes,  2.  R.  S.  441,  §80,  it  is 
enacted  that  when  a  sheriff  or  other  public  officer  shall  find  resistance, 
or  have  reason  to  apprehend  it  in  the  execution  of  any  process  deliv- 
ered to  him,  he  may  command  every  male  inhabitant  of  his  county, 
or  as  many  as  he  shall  think  proper,  to  assist  him  in  overcoming  such 
resistance,  and  in  seizing  and  confining  the  resisters.  The  statute  fur- 
ther requires  that  the  officer  shall  certify  to  the  court,  from  which  the 
process  issued,  the  names  of  the  resisters,  to  the  end  that  they  may  be 
punished  for  their  contempt  of  such  court.  Id.  §  81.  And  it  is  enacted 
that  every  person  commanded  by  an  officer  to  assist  him,  who  shall 
refuse  without  lawful  cause,  shall  be  deemed  guilty  of  a  misdemeanor, 
and  subject  to  fine  and  imprisonment.  Id.  §  82.  The  inference  drawn 
by  the  counsel  for  the  plaintiff  in  error  from  these  premises  is,  that  the 
person  who  comes  in  aid  of  an  officer  to  overcome  resistance,  is  justified, 
whether  the  officer  is  or  not  justified;  and  that  the  question  of  title  to 
the  property  was  not  a  proper  subject  of  inquiry.  On  the  part  of  the 
defendant  in  error,  it  is  contended  that  if  the  principal  be  a  trespasser, 
all  persons  acting  in  his  aid  or  by  his  command  are  also  trespassers; 
that  the  fair  meaning  of  the  statute  is,  that  the  officer  shall  be  aided 
in  the  lawful  execution  of  his  process,  and  that  such  process  must  be 
against  the  individual  whose  person  or  property  is  attempted  to  be 
seized;  that  the  process  to  authorize  a  justification  must  be  against 
the  person  in  possession  of  the  property  taken. 

It  is  certainly  true  that  if  the  officer  be  guilty  of  a  trespass,  those  who 


SECT.  VI.]  ELDER  V.  MORRISON.  653 

act  by  his  command  or  in  his  aid  must  be  trespassers  also,  unless  they 
are  to  be  excused  in  oonsequence  of  the  provision  of  the  revised  statutes. 
If  a  stranger  comes  in  aid  of  an  officer  in  doing  a  lawful  act,  as  executing 
legal  process,  but  the  officer,  by  reason  of  some  subsequent  improper 
act,  becomes  a  trespasser  ah  initio,  the  stranger  does  not  thereby  become 
a  trespasser,  Cro.  Eliz.  181;  Cro.  Car.  446;  but  when  the  original  act 
of  the  officer  is  unlawful,  any  stranger  who  aids  him  will  be  a  trespasser, 
though  he  acts  by  the  officer's  command.  Oystead  v.  Shed,  12  Mass. 
R.  511.  The  case  in  Massachusetts,  just  cited,  was  an  action  of  tres- 
pass de  bonis  asportatis  against  Shed  and  three  others;  Shed  and  Fletcher 
justified  as  officers  under  WTits  of  attachment,  the  two  other  defendants 
justified  as  servants  of  Fletcher;  the  plaintiff  replied,  and  the  de- 
fendants demurred  to  the  replications.  The  court  adjudged  Fletcher's 
plea  bad,  and  the  justification  of  the  other  two  defendants  failed  of 
course;  and  their  ignorance  of  the  law,  it  was  said,  would  not  excuse 
their  conduct  or  diminish  in  any  degree  the  injury  which  the  plaintiff 
sustained.  The  case  of  Leonard  v.  Stacey,  6  Mod.  140,  is  to  the  same 
effect.  That  was  an  action  of  trespass  for  entering  the  plaintiff's 
house  and  taking  away  his  goods.  The  defendant  justified  that  he 
came  in  aid  of  an  officer  in  execution  of  a  WTit  of  reple\'in.  The  plaintiff 
replied  that  he  claimed  property  in  the  goods,  and  gave  notice  to  the 
defendant  before  their  removal.  The  court  held  the  defendant  was  a 
trespasser  ah  initio,  for  though  the  claim  should  be  made  to  the  sheriff, 
yet  if  it  be  notified  to  him  who  comes  in  aid  that  claim  is  made,  he 
ought  to  desist  at  his  peril;  thereby  establishing  the  proposition,  that 
if  the  officer  is  a  trespasser,  all  those  who  act  by  his  command  or  in 
his  aid  are  also  trespassers.  Whenever  a  sheriff  or  constable  has  power 
to  execute  process  in  a  particular  manner,  his  authority  is  a  justification 
to  himself  and  all  who  come  in  his  aid;  but  if  his  authority  is  not  suf- 
ficient to  justify  him,  neither  can  it  justify  those  who  aid  him.  He 
has  no  power  to  command  others  to  do  an  unlawful  act;  the}'  are  not 
bound  to  obey,  neither  by  the  common  law  nor  the  statute,  and  if  they 
do  obey,  it  is  at  their  peril.  They  are  bound  to  obey  when  his  com- 
mands are  lawful,  other^\^se  not.  The  only  hardship  in  the  case  is, 
that  they  are  bound  to  know  the  law.  But  that  obligation  is  universal ; 
ignorance  is  no  excuse  for  any  one.  The  counsel  for  the  plaintiff  in 
error  insists  that  there  is  a  difference  between  aiding  in  the  original 
taking  and  in  overcoming  resistance.  It  seems  to  me  there  is  no  such 
distinction.  If  the  taking  was  lawful,  the  resistance  was  unlawful; 
but  if  the  taking  was  unlawful,  the  resistance  was  lawful.  If  the  re- 
sistance was  lawful,  neither  the  officer  nor  those  he  commands  to  assist 
him  can  lawfully  overcome  that  resistance.  Nor  does  the  fact  of  the 
officer's  being  indemnified,  confer  on  him  any  authority  which  he  had 
not  without  such  indemnity;  he  may  thereby  be  compelled  to  do  an 
illegal  act  in  selling  the  property  of  strangers  to  the  execution,  but  he 
is  a  trespasser  in  doing  so,  as  are  all  others  who  aid  him. 


654  WATSON  V.   STATE.  [ciiAP.  V. 

In  any  view  of  the  subject  which  I  can  take,  I  am  of  opinion  that  the 
decision  of  the  court  of  common  pleas  was  correct,  and  the  judgment 
should  be  affirmed.^ 

Judgment  affirmed. 


WATSON  V.  STATE. 

Supreme  CouPtX  of  Alabama,  1887, 

[Reported  83  Ala.  60.] 

Cloptox,  J.  The  defendant  was  con\'icted  on  a  charge  of  ha\ang 
committed  an  assault  and  battery  on  Harrison  Ward.  The  only 
material  question  presented  by  the  record,  is  whether  the  defendant  is 
guilty  of  the  offense  charged,  if  he,  without  doing  more,  and  using 
no  excess  of  force,  merely  arrested,  secured,  and  delivered  him  to  the 
deputy-sheriff,  who  a  few  moments  previously  had  called  on  the  de- 
fendant to  assist  in  making  the  arrest,  informing  him  that  he  had  a 
warrant  for  Ward's  arrest,  but  in  fact  had  no  such  warrant,  having 
mistaken  him  for  another  person  of  the  same  surname,  but  diflPerent 
christian  name. 

By  section  4666  of  Code  of  1876,  it  is  made  the  duty  of  every  person, 
when  required  to  do  so  by  an  officer,  to  assist  him  in  making  an  arrest; 
and  by  section  4139,  it  is  made  a  criminal  offense,  to  refuse  or  neglect 
to  obey  the  command  of  any  sheriff,  constable,  or  other  officer  having 
authority,  when  summoned  or  commanded  to  assist  such  officer  in 
making  an  arrest. 

Any  officer,  authorized  by  law  to  make  arrests,  is  empowered  to 
summon  or  command  necessary  and  proper  assistance  in  apprehending 
criminals.  A  deputy-sheriff  is  authorized  to  make  arrests.  In  1  Bish. 
on  Crim.  Pro.,  §  185,  the  author  says:  "The  officer,  then,  in  making  an 
arrest,  or  in  securing  his  prisoner  afterward,  may,  if  he  deems  it  neces- 
sary, call  upon  a  bystander  for  help,  or  even  command  the  aid  of  all 
persons  in  his  precinct,  and  equally  whether  he  is  acting  under  a  war- 
rant or  without.  A  refusal  to  assist  him  is  indictable,  prov-ided  he  is 
proceeding  by  lawful  authority ;  or,  if  he  is  not,  his  command  will  be  a 
justification  to  one  who,  knowing  his  official  character,  comes  in  good 
faith  to  his  assi.stance." 

The  power  of  the  officer  to  command  assistance,  when  necessary, 
is  essential  to  the  due  execution  of  the  criminal  law,  and  to  the  protec- 
tion of  society.  This  power,  which  extends  to  calling  to  his  aid  the 
j)ossc  comitatus,  oftentimes  would  be  unavailing,  especially  in  emer- 
gencies requiring  prompt  action  and  assistance,  if  the  person  summoned 

1  See,  however,  Firestone  v.  Rice,  71  Mich.  377.  —  Ed. 


SECT.  VI.]  COMMONWEALTH  V.   CROTTY.  655 

was  required  to  examine  the  papers  of  the  officer,  and  determine  his 
authority  to  make  the  particular  arrest  —  whether  it  would  be  safe  to 
assist  him.  The  officer  is  empowered  by  the  statute  to  determine  the 
necessity  and  time  of  assistance,  and  prompt  obedience  is  the  duty  of 
the  person  summoned  or  commanded.  The  necessity  does  not  admit 
of  delay.  The  officer,  if  acting  without  warrant,  may  be  a  trespasser; 
but  the  private  person  may  rely  upon  his  known  official  character 
and  his  call  for  aid,  and  will  be  protected  in  doing  what  he  is  not  at 
liberty  to  refuse  or  neglect.  It  is  sufficient  if  the  general  official 
authority  of  the  person,  calling  for  aid,  to  make  arrests,  is  known. 
WTien  his  general  power  is  known,  his  call  will  justify  the  citizen  in 
yielding  obedience,  unless  he  has  notice  of  the  want  of  authority  in  the 
particular  ease  in  which  assistance  is  required.  It  would  be  a  strange 
legal  anomaly,  to  punish  a  citizen  for  obeying  the  command  of  an  officer 
invested  with  lawful  authority  to  command  in  the  matter,  and  at  the 
same  time  subject  him  to  punishment  if  he  refuses  or  neglects  to 
obey.  The  duty  is  not  devolved,  to  inquire  whether  the  officer  has  a 
process  authorizing  the  arrest,  or  into  the  legality  of  the  process. 
Mc:\Iahon  v.  Green,  34  Vt.  69;  Reed  v.  Rice,  2  J.  J.  Mar.  44. 

Several  of  the  rulings  of  the  court  conflict  with  the  rule  herein 
declared.    It  is  unnecessary  to  specify  them. 

Reversed  and  remanded. 


COMMONWEALTH  v.   CROTTY. 

Supreme  Judicial  Court  of  Massachusetts,  1865. 

[Reported  10  All.  403.] 

Bigelow,  C.  J.  We  cannot  entertain  a  doubt  that  the  warrant 
on  which  the  officer  attempted  to  arrest  one  of  the  defendants  at  the 
time  of  the  alleged  riot  was  insufficient,  illegal,  and  void.  It  did  not 
contain  the  name  of  the  defendant,  nor  any  description  or  designation 
by  which  he  could  be  known  and  identified  as  the  person  against  whom 
it  was  issued.  It  was  in  effect  a  general  warrant,  upon  which  any  other 
individual  might  as  well  luixe  been  arrested,  as  being  included  in  the 
description,  as  the  defendant  himself.  Such  a  warrant  was  contrary 
to  elementary  principles,  and  in  direct  violation  of  the  constitutional 
right  of  the  citizen,  as  set  forth  in  the  Declaration  of  Rights,  article  14, 
which  declares  that  every  subject  has  a  right  to  be  secure  from  all 
unreasonable  searches  and  seizures  of  his  person,  and  that  all  war- 
rants, therefore,  are  contrary  to  this  right,  if  the  order  in  the  warrant 
to  a  cival  officer  to  arrest  one  or  more  suspected  persons  or  to  seize  their 
property  be  not  accompanied  with  a  special  designation  of  the  persons 
or  objects  of  search,  arrest,  or  seizure.    This  is  in  fact  only  a  declaration 


U 


656  CHASE  V.   INGALLS.  [CHAP.  V. 

of  an  ancient  common  law  right.  It  was  always  necessary  to  express 
the  name  or  give  some  description  of  a  party  to  be  arrested  on  a  war- 
rant; and  if  one  was  granted  with  the  name  in  blank,  and  without  other 
designation  of  the  person  to  be  arrested,  it  was  void.  1  Hale,  P.  C, 
577.  2  lb.,  119.  Foster,  312.  7  Dane  Ab.,  248.  1  Chit.  Crim.  Law, 
39.    Mead  v.  Haws,  7  Cow.  332,  and  cases  cited. 

This  rule  or  principle  does  not  prevent  the  issue  and  service  of  a 
warrant  against  a  party  whose  name  is  unknown.  In  such  case  the 
best  description  possible  of  the  person  to  be  arrested  is  to  be  given  in 
the  warrant;  but  it  must  be  sufficient  to  indicate  clearly  on  whom  it  is 
to  be  served,  by  stating  his  occupation,  his  personal  appearance  and 
peculiarities,  the  place  of  his  residence,  or  other  circumstances  by 
which  he  can  be  identified.     1  Chit.  Crim.  Law,  39,  40. 

The  warrant  being  defective  and  void  on  its  face,  the  officer  had  no 
right  to  arrest  the  person  on  whom  he  attempted  to  serve  it.    He  acted 
without  warrant  and  was  a  trespasser.    The  defendant  whom  he  sought 
to  arrest  had  a  right   to   resist   by  force,  using  no   more  than  was 
necessary  to  resist  the  unlawful  acts  of  the  officer.     An  officer  who  acts 
under  a  void  precept,  and  a  person  doing  the  same  act  who  is  not  an 
officer,  stand  on  the  same  footing.     Shadgett  v.  Clipson,  8  East,  328 
Rex  V.  Hood,  1  Mood.  C.  C.  281;  Hoye  v.  Bush,  2  Scott  N.  R.  86 
Pearce  v.  Atwood,   13  Mass.  324,  344;  Sanford  v.  Nichols,  lb.  286 
Commonwealth  v.  Kennard,  8  Pick.  133;  and  any  third  person  may 
lawfully  interfere  to  prevent  an  arrest  under  a  void  warrant,  doing 
no  more  than  is  necessary  for  that  purpose.     1  Chit.  Crim.  Law,  44. 
The  King  v.  Osmer,  5  East,  304-308. 

The  defendants,  therefore,  in  resisting  the  officer  in  making  an  ar- 
rest under  the  warrant  in  question,  if  they  were  guilty  of  no  improper 
or  excessive  force  or  violence,  did  not  do  an  unlawful  act  by  lawful 
means,  or  a  lawful  act  by  unlawful  means,  and  so  could  not  be  con- 
victed of  the  misdemeanor  of  a  riot,  with  which  they  are  charged  in 
the  indictment. 

The  instructions  under  which  the  case  was  submitted  to  the  jury 
did  not  meet  this  aspect  of  the  case.  It  must  therefore  go  to  a  new 
trial. 

Exceptions  sustained. 


t 


CHASE  V.   INGALLS. 
Supreme  Judicial  Court  of  Massachusetts,  1867. 

[Reported  97  Mass.  524.] 

Wells,  J.  The  execution,  upon  which  the  plaintiff  was  arrested 
and  committed,  was  regular  in  form,  and  bore  the  affida\at  and  cer- 
tificate of  a  magistrate  as  provided  by  the  Gen.  Sts.  c.  124,  §  5.    Prima 


SECT.  VI.]  CHASE   V.    IXGALLS.  657 

facie,  it  is  a  complete  defense  to  the  officers  acting  in  accordance  with 
its  directions.  The  defect  relied  on  by  the  plaintiff  to  deprive  them  of 
its  protection  is  the  fact,  now  admitted,  that  the  magistrate  who  made 
the  certificate  was  the  attorney  of  record  of  the  party  in  whose  favor 
the  execution  issued. 

It  is  settled  law  that  an  officer  is  protected  by  his  precept,  if  the  court 
or  magistrate  had  authority  such  as  the  precept  assumes.  It  is  not 
his  duty  to  inquire  into  the  particular  facts  of  the  case,  if  the  general 
power  appear  and  the  process  be  regular.  He  cannot  be  affected  l)y 
any  irregularity  occurring  prior  to  the  issue  of  his  precept,  nor  by  the 
existence  of  any  fact  which  deprives  the  court  or  magistrate  of  juris- 
diction in  that  particular  case,  provided  the  defect  be  not  disclosed  by 
the  precept  itself,  nor  known  to  the  officer.  Even  if  the  defect  be  one 
which  renders  the  precept  void  in  its  operation  between  the  parties, 
or  for  the  transfer  of  property,  yet  it  will  not  sul)ject  the  officer  to 
liability  as  a  trespasser.  See  Sandford  v.  Nichols,  13  Mass.  28G, 
and  cases  cited  to  this  point  by  the  defendants. 

The  cases  relied  upon  by  the  plaintiff  do  not  support  any  doctrine 
inconsistent  with  this.  The  decision  in  Pierce  v.  Atwood,  1-3  Mass. 
324,  344,  is  put  expressly  upon  the  ground  that  the  want  of  au- 
thority in  the  magistrate  appeared  from  the  warrant  itself.  In 
Fishei"  V.  McGirr,  1  Gray,  45,  the  want  of  jurisdiction  arose  from 
the  very  character  of  the  proceeding,  which  the  warrant  disclosed. 
In  Piper  v.  Pearson,  2  Gray,  120,  the  officer  was  held  liable  be- 
cause his  warrant  did  not  show  affirmatively  an  apparent  juris- 
diction, there  being  none  in  fact,  and  the  burden  being  upon  him 
to  establish  his  justification. 

Where  the  proceeding  is,  in  its  nature,  one  in  which  the  magistrate 
has  no  right  to  exercise  the  authority  under  which  the  officer  assumes 
to  act,  he  is  held  responsible  although  acting  in  good  faith;  because  in 
such  case  the  want  of  authority  is  disclosed  upon  the  face  of  the  pre- 
cept. But  where  the  want  of  authority  arises  from  some  fact  that  is 
personal  to  the  magistrate,  or  peculiar  to  the  proceedings  in  the  partic- 
ular case,  the  precept  cannot  disclose  it,  and  tlie  officer  is  not  to  be 
held  liable  without  actual  knowledge  of  the  fact. 

The  plaintiff  offered  no  e\'idence  to  show  that  the  defendants  had 
actual  knowledge  that  the  certifying  magistrate  was  disqualified; 
not  deeming  it  to  be  material  whether  they  knew  it  or  not;  and  the 
testimony  of  the  defendant  Ingalls,  as  reported,  would  not  warrant  the 
jury  in  finding  such  knowledge.  He  is  not  entitled  now  to  have  a  jury 
to  determine  that  question. 

Upon  another  ground  we  think  the  verdict  must  stand.  The  arrest 
was  in  accordance  with  the  authority  and  directions  of  the  precept. 
It  is  a  proper  mode  of  serving  an  execution,  unless  the  statute  (Gen. 
Sts.  c.  124,  §  5)  restricts  the  right.  The  restriction  applies  to  execu- 
tions "  issued  for  debt  or  damages  in  a  civil  action,  except  in  actions  of 


658  POOLER  V.   REED.  [cHAP.  V. 

tort."  Perhaps  the  term  "civil  action"  might  be  held  to  embrace 
suits  for  divorce.  But  the  restriction  clearly  does  not  extend  to  all 
cases  that  might  be  termed  "Civil  actions."  It  is  limited  to  such  only 
as  are  for  the  recovery  of  "  debt  or  damages."  This  limitation,  and  the 
exception  of  "actions  or  tort,"  which  follows,  indicate  that  the  re-  M' 

striction  is  not  general,  and  was  not  intended  to  apply  to  such  war- 
rants of  the  court  as  may  issue  to  enforce  its  decrees  in  special  proceed- 
ings like  this  of  libel  for  divorce.  The  allowance  of  alimony,  or  the 
award  to  the  wife  of  her  own  or  a  part  of  the  husband's  estate  upon 
granting  a  divorce,  is  not  a  debt  nor  damages,  in  the  sense  of  the 
statute.  No  affidaAat  and  certificate  of  a  magistrate  were  necessary; 
and  therefore  the  exceptions  must  be  overruled. 


/ 


V 


POOLER  V.   REED. 
Supreme  Judicial  Court  of  Maine,  1882. 

[Reported  73  Me.  129.] 


LiBBEY,  J.    The  defendant  justifies  the  arrest  and  imprisonment  of 

the  plaintiff,  as  constable  of  Bangor,  having  a  legal  mittimus  therefor. 

He  thus  puts  directly  in  issue  his  legal  capacity  as  such  officer. 

.-—     jjjg  appointment  to  and  acceptance  of  the  office  of  justice  of  the 

peace,  after  his  election  and  qualification  as  constable,  must  be  held 

I       to  be  a  surrender  of  the  office  of  constable.    Stubbs  v.  Lee,  64  Maine, 

'       195. 

He  was  an  officer  de  facto  when  he  made  the  arrest,  and  while  acting 
as  such  officer,  his  acts  would  be  valid  as  to  third  parties;  and  as  be- 
tween them  his  title  to  the  office  could  not  be  tried;  but  when  he  is  a 
party  and  justifies  his  acts  as  such  officer,  he  must  show  that  he  has  a 
legal  title  to  the  office.  Stubbs  v.  Lee,  64  Maine,  195;  Fowler  v.  Bebee, 
9  Mass.  231;  Sheehan's  Case,  122  Mass.  445;  Green  v.  Burke,  23 
Wend.  490;  People  v.  Hopson,  1  Denio,  574;  Reddle  v.  Bedford,  7 
Serg.  &  R.  386;  Parker  v.  Luffborough,  10  Serg.  &  R.  249;  Keyser  v. 
McKissan,  2  Rawle,  139. 

In  accordance  with  the  agreement  of  the  parties, 

The  action  must  stand  for  trial. 

Appleton,  C.  J.,  Barrows,  Virgin,  Peters,  and  Syivionds,  JJ., 
concurred. 


SECT.  VI. J  LOWENBERG   l'.   ROSENTHAL.  659 


JEFFRIES  V.  HARGIS. 
Supreme  Court  of  Arkansas,  1887. 

[Reported  50  Ark.  65.] 

CocKRiLL,  C.  J.  This  is  an  action  of  trespass  brought  by  appellant 
against  the  appellee.  It  is  a  petty  controversy  about  the  damage  done 
to  a  piece  of  wild  land  by  entering  upon  it  and  cutting  and  carrying 
away  a  few  trees.  The  defendant  had  bought  the  right  to  cut  the  tim- 
ber from  a  tract  adjoining  the  plaintiff's,  and  through  an  apparent  mis- 
understanding as  to  where  the  dividing  line  lay,  entered  upon  the  land 
in  controversy.  Counsel  upon  Ijoth  sides  have  confined  their  inquiries  to 
questions  arising  on  the  charge  to  the  jury  as  to  what  constitutes  a 
trespass,  and  what  evidence  was  competent  to  prove  the  boundary  line 
between  the  two  estates.^  The  abstract  goes  no  farther,  and  we  do  not, 
therefore,  go  beyond  it.  .  .  . 

The  court  also  instructed  the  jury  that  if  the  defendant  crossed  the 
boundary  line  between  the  two  tracts,  through  mistake,  he  was  not 
guilty  of  trespass,  notwithstanding  he  cut  and  carried  away  the  trees. 
It  was  the  defendant's  duty  to  know  the  boundaries  of  his  own  land 
and  keep  within  them,  and  ignorance  thereof  would  not  justify  a  tres- 
pass upon  his  neighbor's  land. 

The  judgment  must  be  reversed  and  the  cause  remanded. 


LOWENBERG  v.   ROSENTHAL. 
Supreme  Court  of  Oregon,  1889. 

[Reported  IS  Ore.  178.] 

Thayer,  C.  J.^  The  special  findings  established  the  fact  that  the 
appellants  took  and  carried  away  timber,  or  trees,  standing  or  being 
upon  the  respondents'  land,  to  the  amount  of  3,800  cords  of  wood,  of 
the  value  of  $380,  without  any  lawful  authority  for  taking  it,  although 
they  had  probable  cause  to  believe,  and  did  believe,  at  the  time  they 
carried  it  away,  that  the  owners  of  the  land  had  authorized  them  to 

1  The  opinion  upon  this  point  of  evidence  is  omitted.  —  Ed. 

*  Only  so  much  of  the  opinion  as  discusses  the  question  of  authority  is  here 
given.  —  Ed. 


660  SHORTER   V.   PEOPLE.  [cHAP.  Y. 

do  SO.  These  facts,  as  a  matter  of  law,  clearly  created  a  liability  on 
the  part  of  the  appellants  for  the  \alue  of  the  wood.  The  appellants 
believing,  and  having  probable  cause  to  believe,  that  the  owners  of 
the  land  had  authorized  them  to  take  the  wood,  did  not  lessen  their 
liability.  If  one  person  takes  and  carries  away  the  property  of  another 
without  lawful  authority  to  do  so,  he  becomes  liable  for  its  value,  what- 
ever his  belief  may  have  been  as  to  his  right  to  take  it.  To  authorize 
one  man  to  take  the  property-  of  another,  he  must  have  had  the  latter's 
consent  to  take  it.  His  belief  in  his  right  to  take  it,  though  he  have 
reasonable  grounds  therefor,  will  not  be  a  sufficient  justification  for 
the  act. 


H 


SHORTER  V.   PEOPLE.     ^ 
Court  of  Appeals  of  New  York.     1849. 

[Reported  2  Comstock,  193.] 

Henr}'  Shorter,  a  negro,  was  indicted  for  the  murder  of  Stephen  C. 
Brush,  and  tried  at  the  Erie  County  Oj'er  and  Terminer  in  November, 
1848.^ 

The  evidence  having  closed,  Justice  Hoyt,  presiding  at  the  trial, 
proceeded  to  charge  the  jury  at  large  upon  the  case,  and  having  done 
so,  the  counsel  for  the  prisoner  requested  the  court  to  charge  that  if 
the  deceased  struck  the  first  blow,  and  if  there  was  reasonable  ground 
to  apprehend  a  design  on  the  part  of  the  deceased  to  do  the  prisoner 
some  great  personal  injury,  and  the  i)risoner  believed  that  there  was 
inuninent  danger  of  such  design  being  accomplished,  it  was  a  case  of 
justifiable  homicide,  although  he  might  he  mistaken  in  such  belief;  and 
that  the  question  was  not  whether  such  danger  existed,  but  whether 
the  prisoner  believed  it  to  exist.  The  court  refused  so  to  charge,  but 
on  the  contrary  charged  that  to  render  the  killing  justifiable  the  jurv 
should  be  satisfied  that  there  was  in  fact  imminent  danger  that  the 
deceased  would  commit  some  great  personal  injury  upon  the  prisoner. 
The  prisoner's  counsel  excepted  to  this  pa  it  of  the  charge  and  to  the 
refusal  to  charge  as  requested.  The  jury  found  the  prisoner  guilty  of 
murder.  A  bill  of  exceptions  was  made  and  the  case  removed  by  cer- 
tiorari into  the  Supreme  Court,  where  a  new  trial  was  refused.  The 
prisoner  brought  error  to  this  court. 

Bronson,  J,  When  one  who  is  without  fault  himself  is  attacked 
by  another  in  such  a  manner  or  under  such  circumstances  as  to  furnish 
reasonable  ground  for  ap|)rehending  a  design  to  take  away  his  life,  or 
do  him  some  great  bodil}'  harm,  and  there  is  reasonable  ground  for 

^  The  evidence,  arguments,  and  part  of  the  opinion  are  omitted. 


I 


SECT.  Yl.\  SHORTER  V.   PEOPLE.  661 

believing  the  clanger  imminent  that  such  design  will  be  accomplished, 
I  think  he  ma}'  safe!}'  act  upon  appearances,  and  kill  the  assailant,  if 
that  l)e  necessaiy  to  avoid  tlie  apprehended  danger ;  and  the  killing 
will  be  justifiable,  although  it  ma}'  afterwards  turn  out  that  the  appear- 
ances were  false,  and  tliere  was  i/i  fact  neitiier  design  to  do  him 
serious  injury,  nor  danger  that  it  wouUl  be  done.  He  must  decide  at 
his  peril  upoa  the  force  of  the  circumstances  in  which  he  is  placed,  for 
that  is  a  niatter  which  will  be  subject  to  judicial  review.  But  he  will 
not  act  at  the  peril  of  nuiking  that  guilt,  if  appearances  prove  false, 
wliich  would  be  innocence  had  they  proved  true.  I  cannot  better 
illustrate  my  meaning  than  by  taking  tlie  case  put  by  Judge,  afterwards 
Chief  Justice  Parker,  of  Massachusetts,  on  the  trial  of  Thomas  O. 
Selfridge.  "  A.  in  the  peaceable  pursuit  of  his  affairs  sees  B.  walking 
rapidly  towards  liim  with  an  outstretclied  arm  and  a  pistol  in  his  hand, 
and  using  violent  menaces  against  his  life  as  he  advances.  Having 
approached  near  enough  in  the  same  attitude,  A.  who  has  a  club  in 
his  hand,  strikes  B.  over  the  head,  before,  or  at  tlie  instant  the  pistol 
is  discharged  ;  and  of  the  wound  B.  dies.  It  turns  out  that  the  pistol 
was  loaded  with  powder  only,  and  that  the  real  design  of  B.  was  only 
to  terrif}^  A."  Upon  this  case  the  judge  inquires,  "  Will  any  reasonable 
man  sa}'  that  A.  is  more  criminal  than  he  would  have  been  if  there 
had  been  a  bullet  in  the  pistol  ?  Those  who  hold  such  doctrine  must 
require  that  a  man  so  attacked  must,  before  he  strikes  the  assailant, 
stop  and  ascertain  how  the  pistol  was  loaded,  —  a  doctrine  which  would 
entirel}'  take  away  the  right  of  self  defence.  And  when  it  is  considered 
that  the  jury  who  tr}'  the  cause,  and  not  the  party  killing,  are  to  judge 
of  the  reasonable  grounds  of  his  appri^hension^  no  danger  can  be  sup- 
posed to  flow  from  this  principle."  The  judge  had  before  instructed 
the  jury  that,  "when  from  the  nature  of  the  attack  there  is  reasonable 
ground  to  believe  that  there  is  a  design  to  destroy  his  life,  or  commit 
any  felony  upon  his  person,  the  killing  of  the  assailant  will  be  excus- 
able homicide,-  although  it  should  afterwards  appear  that  no  felony  was 
intended"  Selfridge's  Trial,  p.  160;  1  Russ.  on  Crime,  699,  ed.  of 
'24;  p.  485,  note,  ed.  of  '36.  To  this  doctrine  I  full\'  subscribe.  A 
different  rule  would  la}'  too  heavy  a  burden  upon  poor  humanity. 

I  have  stated  the  case  of  Selfridge  the  more  fully,  because  it  is  not 
only  an  authority  in  point,  but  it  is  one  which  the  revisers  professed 
to  follow  in  framing  our  statute  touching  this  question. 

I  shall  not  stop  to  consider  the  common  law  distinctions  between 
justifiable  and  excusable  homicide,  because  our  statute  has  placed  kill- 
ing in  self  defence  under  the  head  of  justifiable  homicide.     2  R.  S.  660, 


s.  3. 


The  Massachusetts  case  lays  down  no  new  doctrine.  The  same 
principle  was  acted  on  in  Levett's  Case.^  Foster  (Crown  Law,  p. 
299)  says  of  this  case,  "  Possibly  it  might  have  been  better  ruled  man- 

'  The  learnerl  jurlsje  heiP  stated  Leyott's  Case,  ante.  —  Ed. 


C}C)2  SHORTER  V.   PEOPLE.  [CHAP.  V. 

slaughter  at  common  law,  due  circumspection  not  having  been  used." 
I  do  not  understand  him  as  questioning  the  principle  of  the  decision, 
but  as  only  expressing  a  doubt  whether  the  principle  was  properly 
ap[)lied.  He  calls  it  nothing  more  than  a  case  of  manslaughter,  when, 
if  a  man  may  not  act  upon  appearauci's,  it  was  a  plain  case  of  murder. 
So  far  as  I  have  observed,  no  other  writer  upon  criminal  law  has  ques- 
tioned, in  any  degree,  the  decision  in  Levett's  Case;  and  most  of  them 
have  fully  approved  it.  East,  in  his  I'leas  of  the  Crown  (vol.  i.  p. 
274,  375),  has  done  so.  Hale- (1  P.  C.  42,  474)  mentions  it  among 
cases  where  ignorance  of  the  fact  will  excuse  froni  all  blame.  Haw- 
kins (1  P.  C.  84,  Curwood's  ed.)  saj's  the  killing  had  not  the  appear- 
ance of  a  fault.  Russell  (on  Crimes,  vol.  i.  p.  550,  ed.  of  1836) 
approves  the  decision,  which  he  introduces  with  the  remark  that 
"  important  considerations  will  arise  in  cases  of  this  kind  [he  was 
speaking  of  homicide  in  defence  of  one's  person,  habitation,  or  prop- 
erty] as  to  the  grounds  whir-h  the  party  killing  had  for  supposing  that 
the  person  slain  had  a  felonious  design  against  him  ;  more  especially 
where  it  afterwards  appears  that  no  such  design  existed."  Roscoe, 
(Crim.  Ev.  p.  G3i))  sajs,  "  It  is  not  essential  that  an  actual  felony 
should  be  about  to  be  committed  in  oider  to  justify  the  killing.  If 
the  circumstances  are  such  as  that,  after  all  reasonable  caution,  the 
party  suspects  that  the  felony  is  about  to  be  immediately  committed, 
he  will  be  justified."  And  he  then  gives  Levett's  Case  as  an  example. 
The  case  of  Sir  William  Hawksworth,  who,  through  his  own  fault, 
was  shot  bj-  the  keeper  of  his  park,  who  took  him  for  a  stranger  who 
had  come  to  destroy  the  deer,  went  upon  the  same  principle.  1  Hale's 
P.  C.  40  ;  1  East,  P.  C.  275  ;  1  Russ.  on  Cr.  549.  Other  cases  are 
put  in  the  books  where  the  killing  will  be  justified  b^'  appearances, 
though  they  afterwards  prove  false.  A  general,  to  try  the  vigilance  or 
courage  of  his  sentinel,  comes  upon  the  sentinel  in  the  night  in  the 
posture  of  an  enemy,  and  is  killed.  There  the  ignorance  of  the  sen- 
tinel that  it  was  his  general,  and  not  an  enemy,  will  justif}'  the  killing. 
1  Hale's  P.  C.  42  ;  1  East,  P.  C.  275  ;  1  Russ.  540.  The  case  men- 
tioned by  Lord  Hale,  which  was  before  him  at  Peterborough,  where  a 
servant  killed  his  master,  supposing  he  was  shooting  at  deer  in  the 
corn  in  obedience  to  his  master's  orders,  belongs  to  the  same  class. 
1  Hale's  P.  C.  40,  47(> ;  1  Russ.  540.  In  Rampton's  Case  (Kelyng 
Rep.  41)  the  defendant  killed  his  wife  with  a  pistol  which  he  had 
found  in  the  street,  after  ascertaining,  as  he  supposed,  b}-  a  trial  with 
the  ramrod,  that  it  was  not  loaded,  tliough  in  fact  it  was  charged  with 
two  bullets.  This  was  adjudged  to  be  manslaughter,  and  not  merel}' 
misadventure.  Foster  (Crown  Law,  263,  4)  calls  this  a  hard  case, 
and  thinks  the  man  should  have  been  wliolly  acquitted,  on  the  ground 
that  he  exercised  due  caution,  —  the  utmost  caution  not  being  neces- 
sary in  such  cases.  Rut  if  the  decision  was  right,  as  I  am  inclined  to 
think  it  was,  for  the  want  of  proper  caution,  still  the  case  goes  on  the 
ground  that  the  degree  of  guilt  may  be  affected  b}-  appearances  which 


SECT.  VI.]  SHORTER  V.   PEOPLE.  663 

afterwards  prove  false  ;  for  if  he  had  not  tried  the  pistol,  it  would 
have  been  murder.  Foster  (p.  265)  mentions  a  case  which  was  tried 
before  him,  where  the  prisonei  had  sliot  his  wife  with  a  gun,  which  he 
supposed  was  not  loaded.  The  judge,  behig  of  opinion  that  the  pris- 
oner had  reasonable  ground  to  believe  that  the  gun  was  "not  loaded, 
directed  the  jury,  that  if  tliey  were  of  the  same  opinion,  they  should 
acquit  the  prisoner;  and  he  was  acquitted.  In  Meade's  Case  (1 
Le win's  Cr.  Cas.  184)  the  prisoner  had  killed  with  a  pistol  one  of  a 
great  number  of  persons  who  came  about  liis  house  in  the  night  time, 
singing  songs  of  menace,  and  using  violent  language.  Llolroyd,  J., 
told  the  jury  that  if  there  was  nothing  but  the  song,  and  no  apjjear- 
unce  of  violence,  if  they  believed  there  was  no  reasonable  (jround  for 
apprehending  danger,  the  killing  was  murder.  And  in  The  People 
i'.  Rector  (19  Wend.  569}  Coweu,  J.,  said  alarm  on  the  part  of 
the  prisoner,  on  apparent  though  unreal  grounds,  was  pertinent  to 
the  issue.  In  The  U.  S.  v.  Wiltberger  (3  Wash.  C.  C.  515,  521)  the 
judge  told  the  jury  that,  for  the  purpose  of  justifying  the  kiUing,  the 
intent  of  the  deceased  to  commit  a  felony  must  be  apparent^  which 
would  be  sufficient,  although  it  should  afterwards  turn  out  that  the 
real  intention  was  less  criminal,  or  even  innocent.  He  afterwards 
added  that  the  danger  must  be  imminent,  —  meaning,  undoubtedly, 
that  it  must  wear  that  appearance.  The  State  v.  Wells  (1  Coxe  N.  J. 
Rep.  424)  is  entirely  consistent  with  this  doctrine.  The  Supreme 
Court  of  Tennessee  has  gone  still  further,  and  held  that  one  who  kills 
another,  believing  himself  in  danger  of  great  bodily  harm,  will  be  jus- 
tified, although  he  acted  from  cowardice,  and  without  any  sufficient 
ground,  in  the  appearances,  for  the  killing.  Grainger  v.  The  State, 
5  Yerger,  459.  This  was,  I  think,  going  too  far.  It  is  not  enough 
that  the  party  believed  himself  in  danger,  unless  the  facts  and  circum- 
stances were  such  that  the  jury  can  sa}'  he  had  reasonable  grounds  for 
his  belief. 

We  have  been  referred  to  two  cases  where  it  was  said,  in  substance, 
that  the  killing  must  be  necessary  :  Regina  v.  Smith,  8  Car.  &  Pay. 
160,  and  Regina  v.  Bull,  9  id.  22;  and  other  authorities  to  the  same 
effect  might  have  been  cited.  The  life  of  a  human  being  must  not  be 
taken  upon  slight  grounds  ;  there  must  be  a  necessity,  either  actual  or 
apparent,  for  the  killing,  or  it  cannot  be  justified.  That,  I  think,  is 
all  that  was  meant  by  such  remarks  as  have  been  mentioned.  The 
unqualified  language  that  the  killing  must  be  necessary  has,  I  think, 
never  been  used  when  attention  was  directed  to  the  question  whether 
the  accused  might  not  safely  act  upon  the  facts  and  circumstances  as 
they  werb  presented  at  the  time.  1  have  met  with  no  authority  for 
saying,  that  a  homicide  which  would  be  justifiable  had  appearances 
proved  trae,  will  be  criminal  when  they  prove  false. 


664  FETTER   V.   BEAL.  [CHAP.  VI. 


CHAPTER  VI. 
MEASURE   OF   COMPENSATION. 


SECTION  I. 

Entire  Damages. 

FETTER  V.   BEAL. 
King's  Bench,  1698:  1701. 

[Reported  1  Ld.  Ray.  339,  692.]  .^ 

Special  action  of  trespass  and  battery  for  a  battery  committed  by 
the  defendant  upon  the  plaintiff,  and  breaking  his  skull.  The  plaintiff 
declares  of  the  battery,  etc.,  and  that  he  l)rought  an  action  for  it  against 
the  defendant,  and  recovered  to  £11  and  no  more;  and  that  after  that 
recovery  part  of  his  skull  by  reason  of  the  said  battery  came  out  of  his 
head,  per  quod,  etc.  The  defendant  pleaded  the  said  recovery  in  bar. 
Upon  which  the  plaintiff  demurred.  And  Shower  for  the  plaintiff 
argued,  that  this  action  differed  from  the  nature  of  the  former,  and 
therefore  would  well  lie,  notwithstanding  the  recovery  in  the  other; 
because  the  recovery  in  the  former  action  was  only  for  the  bruise  and 
battery,  but  here  there  is  a  maihem  by  the  loss  of  the  skull.  As  if  a 
man  brings  an  action  against  another  for  taking  and  detaining  of  goods 
for  two  months,  and  afterwards  he  brings  another  action  for  taking 
and  detaining  for  two  years,  th,)?  recovery  in  the  former  action  is  not 
pleadable  in  bar  of  the  second.  If  death  ensues  upon  the  battery  of  a 
servant,  this  will  take  away  the  action  per  quod  servitium  amisit.  And 
then  if  a  consequence  will  take  away  an  action,  for  the  same  reason  it 
will  give  an  action.  If  a  man  brings  an  action  for  uncovering  his  house, 
bj^  which  his  goods  were  spoiled,  and  afterwards  by  reason  of  the  said 
uncovering  new  goods  are  spoiled,  he  shall  have  a  new  action.  Quod 
Holt  negavit.  And  per  totam  curiam,  the  jury  in  the  former  action  con- 
sidered the  nature  of  the  wound,  and  gave  damages  for  all  the  damages 
that  it  had  done  to  the  plaintiff";  and  therefore  a  recovery  in  the  said 
action  is  good  here.  And  it  is  the  plaintiff's  fault,  for  if  he  had  not 
been  so  hasty,  he  might  have  been  satisfied  for  this  loss  of  the  skull 
salo.    ,  Judgment  for  the  defendant,  nisi,  etc. 


SECT.  I.l  FETTER  V.   BEAL.  665 

Sir  Bartholomew  Shower  moved  in  this  case  for  judgment  for  the 
plaintiff,  because  this  special  subsequent  damage  is  a  sufficient  founda- 
tion for  an  action,  and  that  for  great  reason,  because  the  jury  could 
not  have  consideration  of  it  in  giving  damages.  And  he  compared  it 
to  the  case  of  a  nuisance,  that  a  man  might  have  an  action  for  every 
new  dropping  of  the  water  from  the  eaves  of  the  house.  2.  There  is  a 
maim  laid  here,  and  therefore  the  prior  recovery  in  the  action  of  assault 
cannot  be  a  bar.  Mr.  Montague,  of  the  same  side  said,  that  if  A 
breaks  a  sea  wall,  and  the  owner  of  the  land  recovers  damages  for  it  ra, 
an  action,  and  erects  a  new  wall,,  and  before  it  is  dry  and  settled  the 
sea  throws  it  down  again,  and  overflows  the  land,  etc.,  for  this  special 
subsequent  damage  the  owner  may  have  a  new  action.  Holt,  Chief 
Justice.  This  is  a  new  case  to  which  there  is  no  parallel  in  the  books. 
Every  one  shall  recover  damages  in  proportion  to  his  prejudice  which 
he  hath  sustained;  and  if  this  matter  had  been  given  in  evidence,  as 
that  which  in  probability  might  have  been  the  consequence  of  the  bat- 
tery, the  plaintiff  would  have  recovered  damages  for  it.  The  injury, 
which  is  the  foundation  of  the  action,  is  the  battery,  and  the  greatness 
or  consequence  of  that  is  only  in  aggravation  of  damages.  In  some 
cases  the  damage  is  the  foundation  of  the  action,  as  in  the  action  by 
the  master  for  battery  of  his  servant,  per  quod  sermtium  aviisit,  but 
here  the  battery  only  is  the  foundation  of  the  action,  and  this  damage, 
which  might  probably  ensue,  might  and  ought  to  have  been  gi\'en  in 
evidence,  and  must  be  intended  to  have  been  given  in  ex-idence  in  the 
former  action,  and  that  the  jury  gave  damages  for  all  the  hurt  that  he 
suffered;  for  if  the  nature  of  the  battery  was  such,  as  probably  to  pro- 
duce this  effect,  the  jury  might  give  damages  for  it  before  it  happened. 
As  to  the  case  of  the  sea  wall,  the  plaintiff  would  recover  damages 
enough  in  the  first  action,  to  rebuild  it;  and  if  he  rel)uilds  it  ill,  the 
fault  is  his  own.  And  as  to  the  nuisance  every  new  dropping  is  a  new 
nuisance.  As  to  the  maihem,  that  is  nothing;  for  a  recovery  in  battery, 
etc.  is  a  bar  in  appeal  of  maihem,  4  Co.  43.  a.  because  in  battery  the 
plaintiff  may  give  a  maihem  in  evidence,  and  recover  damages  for  it. 
And  Holt,  C.  J.,  said,  that  the  original  cause  was  tried  before  him 
eight  years  ago,  and  the  plaintiff  and  defendant  appeared  to  be  both 
in  drink,  and  the  jury  did  not  well  know  which  of  them  was  in  fault, 
and  therefore  they  gave  the  less  damages.  The  plaintiff  could  not  ob- 
tain judgment,  the  court  inclining  strongly  against  him. 


06G  CASSELBERRY  V.  FORQUER.  [CHAP.  VI.  ^' 


CASSELBERRY  v.  FORQUER. 
Supreme  Court  of  Illinois,  1862. 

[Reported  27  III.  170.] 

On  the  24th  of  May,  1854,  Casselberry  leased  from  William  Forquer 
certain  land  in  St.  Clair  county  for  three  years,  for  $150  a  year,  one- 
half  payable  semi-annually  on  the  25th  of  December  and  March  en- 
suing. On  the  3rd  day  of  June,  1857,  Susannah  Forquer  brought  two 
suits  on  said  lease,  for  $75  each,  before  the  same  justice  of  the  peace, 
and  filed  her  accounts,  one  for  rent  from  1st  of  March  to  25th  December, 
185G,  the  other  for  rent  from  25th  December,  1856,  to  1st  March,  1857. 
On  the  13th  of  June,  1857,  judgments  were  rendered  in  each  case  for 
$75,  and  costs,  against  Casselberry,  from  which  he  appealed  to  the  St. 
Clair  Circuit  Court.  After  two  more  installments  were  due,  to  wit,  on 
the  4th  of  March,  1858,  Mrs.  Forquer  brought  a  third  suit  on  said 
lease,  before  a  justice  of  the  peace,  and  filed  her  account  for  rent  from 
March  1st,  1857,  to  December  25th,  1857,  and  on  the  12th  of  March, 
1858,  recovered  another  judgment  for  $75,  and  costs,  which  was  also 
appealed  to  said  Circuit  Court.  On  the  28th  of  April,  1858,  Mrs. 
Forquer  brought  a  fourth  suit  on  said  lease,  before  a  justice  of  the  peace, 
and  filed  her  account  for  rent  from  December  25th,  1857,  to  March  1st, 
1858.  She  recovered  another  judgment  for  $75,  and  costs,  which  was 
also  appealed  to  said  Circuit  Court.  The  cases  were  continued  in 
said  court  till  the  September  term,  1859,  when  they  were  submitted 
together  to  the  court  for  trial. 

On  the  trial,  Mrs.  Forquer  introduced  in  evidence  said  lease,  made 
by  William  Forquer  to  Casselberry.  Also,  the  last  wnll  of  William 
Forquer,  duly  proved  and  recorded  in  the  County  Court  of  said  county, 
on  the  7th  of  October,  1855,  by  which  he  de\'ised  to  plaintiff  said  lease. 
The  defendant  then  produced  in  evidence  a  decree  in  partition  in  the 
St.  Clair  Circuit  Court,  at  its  March  term,  1856,  wherein  the  parties 
to  this  suit,  and  the  heirs  and  devisees  of  William  Forquer,  were  com- 
plainants or  defendants ;  ordering  the  sale  of  the  leased  premises,  among 
other  lands,  and  a  deed  made  by  the  commissioners  under  said  decree, 
of  more  than  one-half  of  said  leased  premises  to  Joseph  Vellinger, 
dated  May  31st,  1856.  It  was  admitted  that,  for  a  small  advance  on 
his  purchase,  Vellinger  conveyed  said  land  to  Casselberry,  by  deed, 
dated  April  27,  1857.  Plaintiff  below  then  proved  that,  after  said 
decree  and  sales,  said  decree  was  reversed  in  the  Supreme  Court  of  this 
State,  in  Januar\-,  1859.  Plaintiff  then  introduced  in  evidence  the  bill 
in  chancery  on  which  said  decree  was  founded. 

The  court  took  the  cases  under  advisement,  and  at  the  March  term, 
1860,  rendered  judgment  for  $75,  and  costs,  in  each  case.    Casselberry 


SECT,  I.]  DARLEY  MAIN  COLLIERY  CO.  V.  MITCHELL.  667 

moved  for  a  new  trial  in  each  case,  because  the  several  findings  were 
contrary  to  law  and  to  evidence;  which  motions  were  severally  over- 
ruled by  the  court,  and  excepted  to,  and  the  cases  severally  appealed 
to  the  Supreme  Court,  and  by  consent  to  be  heard  at  Springfield. 

All  the  cases  are  settled  by  the  following  opinion  of  the  Court. 

Breese,  J.  There  is  really  but  one  question  presented  by  this 
record,  and  that  is,  the  right  to  sue  separately  for  each  of  the  claims 
after  two  of  them  had  become  due  and  payable.  The  question  about 
the  lease,  and  the  rights  of  these  parties  under  it,  cannot  be  considered, 
for  the  court,  in  the  partition  case  in  chancery,  the  proceedings  in  which 
are  made  part  of  this  case,  never  had  any  jurisdiction  over  the  lease- 
hold interest  of  Susannah  Forquer  to  sell  it,  and  the  sale  of  it  was 
therefore  void. 

When  the  several  payments  reserved  by  the  lease  were  due,  suit 
could  be  brought  on  each  payment  successively,  as  they  fell  due.  But 
if  more  than  one  payment  be  due  at  the  time  of  suit  brought,  they  must 
be  consolidated  into  one  suit,  otherwise  a  recovery  in  one  could  be 
pleaded  in  bar  of  a  recovery  in  the  other.  Here  the  facts  show,  that  at 
the  institution  of  each  of  these  suits,  two  payments,  of  seventy-five 
dollars  each,  were  due,  and  a  separate  recovery  allowed.  This  cannot 
be  done.  In  the  case  of  Camp  v.  Morgan,  21  111.  258,  this  court  said,  , 
the  doctrine  was  well  settled  that  a  plaintiff  cannot  so  divide  an  entire 
demand,  or  cause  of  action,  as  to  maintain  several  actions  for  its  re- 
covery. When  these  suits  were  brought,  there  was  an  entire  demand 
existing  against  the  defendant  in  each  case,  of  one  hundred  and  fifty 
dollars,  then  due  and  payable.  Suit  should  have  been  brought  for  the 
entire  demand,  all  of  them  arising  out  of  the  same  transaction. 

The  judgment  is  reversed,  and  the  cause  remanded,  with  direction  to 
dismiss  the  several  suits. 

Judgment  reversed. 


DARLEY  MAIN  COLLIERY  CO.  v.  MITCHELL. 
House  of  Lords,  1886. 

[Reported  11  App.  Cas.  127.] 

Lord  Halsbury,  L.  C.  My  Lords,  in  this  case  the  plaintiff,  the 
owner  of  land  upon  the  surface,  has  sued  the  lessee  of  certain  seams  of 
coal  below  and  adjacent  to  the  plaintiff's  land  for  having  disturbed  the 
plaintiff  in  the  enjoyment  of  his  property  by  causing  it  to  subside. 
The  defendants  before  and  up  to  the  year  1868  have  worked,  that  is 
to  say,  excavated,  the  seams  of  coal,  of  which  they  were  lessees.  Their 
excavation  caused  a  subsidence  of  the  ground,  for  which  they  acknowl- 
edged their  liability  and  made  satisfaction.  There  were  other  sub- 
sidences after  this,  and  as  the  case  originally  came  before  your  Lord- 


668  DARLEY  MAIN  COLLIERY  CO.   V.   MITCHELL.        [cELiP.  VI. 

ships,  it  was  matter  of  inference  only  whether  these  subsidences  were 
or  were  not  in  some  way  connected  with,  if  not  forming  part  of,  the 
original  subsidence.  The  parties  have  now  by  an  admission  at  your 
Lordships'  bar,  placed  the  matter  beyond  doubt. 

It  has  been  agreed  that  the  owner  of  the  adjoining  land  worked 
out  his  coal  subsequently  to  1868.  Thaf  if  he  had  not  done  so  there 
would  have  been  no  further  subsidence,  and  if  the  defendants'  coal 
had  not  been  taken  out,  or  if  sufficient  support  had  been  left,  the  work- 
ing of  the  adjoining  owner  would  have  done  no  harm.  Under  these 
circumstances,  the  question  is  whether  the  satisfaction  for  the  past 
subsidence  must  be  taken  to  have  been  equivalent  to  a  satisfaction  for 
all  succeeding  subsidences.  No  one  will  think  of  disputing  the  proposi- 
tion that  for  one  cause  of  action  you  must  recover  all  damages  incident 
to  it  by  law  once  and  for  ever.  A  house  that  has  received  a  shock  may 
not  at  once  shew  all  the  damage  done  to  it,  but  it  is  damaged  none  the 
less  then  to  the  extent  that  it  is  damaged,  and  the  fact  that  the  damage 
only  manifests  itself  later  on  by  stages  does  not  alter  the  fact  that  the 
damage  is  there;  and  so  of  the  more  complex  mechanism  of  the  human 
frame,  the  damage  is  done  in  a  railway  accident,  the  whole  machinery 
is  injured,  though  it  may  escape  the  eye  or  even  the  consciousness  of  the 
sufferer  at  the  time;  the  later  stages  of  suffering  are  but  the  manifesta- 
tions of  the  original  damage  done,  and  consequent  upon  the  injury  orig- 
inally sustained. 

But  the  words  "  cause  of  action  "  are  somewhat  ambiguously  used  in 
reasoning  upon  this  subject;  what  the  plaintiff  has  a  right  to  complain  of 
in  a  Court  of  Law  in  this  case  is  the  damage  to  his  land,  and  by  the  dam- 
age I  mean  the  damage  which  had  in  fact  occurred,  and  if  this  is  all 
that  a  plaintiff  can  complain  of,  I  do  not  see  why  he  may  not  recover 
toties  quoiies  fresh  damage  is  inflicted. 

Since  the  decision  of  this  House  in  Bonomi  v.  Backhouse  it  is  clear 
that  no  action  would  lie  for  the  excavation.  It  is  not,  therefore,  a  cause 
of  action ;  that  case  established  that  it  is  the  damage  and  not  the  exca- 
vation which  is  the  cause  of  action.  I  cannot  understand  why  every 
new  subsidence,  although  proceeding  from  the  same  original  act  or 
omission  of  the  defendants,  is  not  a  new  cause  of  action  for  which 
damages  may  be  recovered.  I  cannot  concur  in  the  view  that  there  is  a 
breach  of  duty  in  the  original  excavation. 

In  Rowbotham  v.  Wilson,  Cresswell,  J.,  said  that  the  owner  of  the 
mines  might  have  removed  every  atom  of  the  minerals  without  being 
liable  to  an  action,  if  the  soil  above  had  not  fallen;  and  what  is  true  of 
the  first  subsidence  seems  to  me  to  be  necessarily  true  of  every  subse- 
quent subsidence.  The  defendant  has  originally  created  a  state  of 
things  which  renders  him  responsible  if  damage  accrues;  if  by  the 
hypothesis  the  cause  of  action  is  the  damage  resulting  from  the  defend- 
ant's act,  or  an  omission  to  alter  the  state  of  things  he  has  created,  why 
may  not  a  fresh  action  be  brought?    A  man  keeps  a  ferocious  dog  which 


SECT.  I.]  DARLET  MAIN  COLLIERY  CO.   V.   MITCHELL.  669 

bites  his  neighbour;  can  it  be  contended  that  when  the  bitten  man  brings 
his  action  he  must  assess  damages  for  all  possibility  of  future  bites?  A 
man  stores  water  artificially,  as  in  P^letcher  v.  Rylanfls;  the  water 
escapes  and  sweeps  away  the  plaintiff's  house;  he  rebuilds  it,  and  the 
artificial  reservoir  continues  to  leak  and  sweeps  it  away  again.  Cannot 
the  plaintiff  recover  for  the  second  house,  or  must  he  have  assessed  in 
his  first  damages  the  possibility  of  any  future  invasion  of  water  flowing 
from  the  same  reservoir? 

With  respect  to  the  authorities  the  case  of  Nicklin  v.  Williams  was 
urged  by  the  Attorney-General  as  an  authority  upon  the  question  now 
before  your  Lordships,  by  reason  of  some  words  attributed  to  Lord 
Westbury  in  Bonomi  v.  Backhouse.  If  Lord  Westbury  really  did  use 
the  words  attributed  to  him,  it  is,  I  think,  open  to  doubt  in  what  sense 
they  are  to  be  understood.  Baron  Parke  in  that  case  delivered  the 
judgment  against  the  plaintiffs  recovering  any  subsequently  accruing 
damage,  because,  he  said,  the  cause  of  action  was  the  original  injury 
to  the  right  by  withdrawing  support.  That  principle  is  admittedly 
wrong,  and  was  expressly  held  to  be  WTong  in  Bonomi  v.  Backhouse 
since  if  that  had  been  law  there  could  have  been  no  answer  to  the  plea 
of  the  Statute  of  Limitations  in  that  case.  It  is  difficult  to  follow  the 
Master  of  the  Rolls  when  he  says  it  was  not  necessary  to  overrule 
Nicklin  v.  Williams  by  that  decision.  It  seems  to  me  to  have  been  the 
whole  point  decided  in  Nicklin  v.  Williams,  and  how  that  case  so  de- 
cided can  be  an  authority  for  anything  I  am  at  a  loss  to  understand. 

I  think  the  decision  of  this  case  must  depend  as  matter  of  logic  upon 
the  decision  of  your  Lordship's  House  in  Bonomi.  t).  Backhouse,  and 
I  do  not  know  that  it  is  a  very  legitimate  inquiry,  when  a  principle  has 
been  laid  by  a  tribunal  from  which  there  is  no  appeal,  and  which  is 
boimd  by  its  own  decisions,  whether  that  principle  is  upon  the  whole 
advantageous  or  convenient;  but  if  such  considerations  were  permissible, 
I  think  Cockburn,  C.  J.,  in  his  judgment  in  Lamb  v.  Walker  establishes 
the  balance  of  convenience  to  be  on  the  side  of  the  law,  as  established 
by  Bonomi  v.  Backliouse.  I  cannot  logically  distinguish  between  a  first 
and  a  second,  or  a  third,  or  more  subsidences,  and  after  Bonomi  v. 
Backliouse  it  is  impossible  to  say  that  it  was  WTong  in  any  sense  for  the 
defendant  to  remove  the  coal.  Cresswell,  J.,  has  said,  and  I  think 
rightly,  that  he  might  remove  every  atom  of  the  mineral. 

The  wrong  consists,  and,  as  it  appears  to  me,  whollj^  consists,  in 
causing  another  man  damage,  and  I  think  he  may  recover  for  that  dam- 
age as  and  when  it  occurs. 

For  these  reasons,  I  think  that  the  judgment  appealed  from  should 
be  affirmed  with  costs. 

Lord  Bramwell  and  Lord  Fitzgerald  delivered  concurring 
opinions;  Lord  Blackburn  dissented. 


670 


ALDWORTH  V.    LYNN. 


[chap.  VI. 


ALDWORTH  v.  LYNN.' 
Supreme  Judicial  Court  of  Massachusetts,  1891. 

[Reported  153  Mass.  53.] 

Knowlton,  J.  This  action  is  to  recover  damages  for  a  use  of  the 
defendant's  premises  which  was  injurious  to  the  plaintiff's  adjoining 
land;  or,  in  other  words,  for  the  maintenance  of  a  nuisance.  The  plain- 
tiff excepted  to  the  ruling  that  she  was  entitled  to  recover  damages 
only  to  the  date  of  her  wTit,  and  contended  that  the  dam  and  pond 
were  permanent,  and  that  she  was  entitled  to  damages  for  a  permanent 
injury  to  her  property.  An  erection  unlawfully  maintained  on  one's 
own  land,  to  the  detriment  of  the  land  of  a  neighbor,  is  a  continuing 
nuisance,  for  the  maintenance  of  which  an  action  may  be  brought  at 
any  time,  and  damages  recovered  up  to  the  time  of  bringing  the  suit. 
Prentiss  v.  Wood,  132  Mass.  486.  Wells  v.  New  Haven  &  Northampton 
Co.  151  Mass.  46,  and  cases  there  cited.  That  it  is  of  a  permanent 
character,  or  that  it  has  been  continued  for  any  length  of  time  less 
than  what  is  necessary  to  acquire  a  prescriptive  right,  does  not  make 
it  lawful,  nor  deprive  the  adjacent  landowner  of  his  right  to  recover 
damages.  Nor  can  the  adjacent  landowner  in  such  a  case,  who  sues 
for  damage  to  his  property,  compel  the  defendant  to  pay  damages  for 
the  future.  The  defendant  may  prefer  to  change  his  use  of  his  property 
so  far  as  to  make  his  conduct  lawful.  In  the  present  case,  we  cannot 
say  that  the  defendant  may  not  repair  or  reconstruct  its  dam  and 
reservoir  in  such  a  way  as  to  prevent  percolation,  with  much  less  ex- 
penditure than  would  be  required  to  pay  damages  for  a  permanent 
injury  to  the  plaintiff's  land.  As  was  pointed  out  in  Wells  v.  New 
Haven  &  Northampton  Co.,  ubi  supra,  it  appeared  in  Fowle  v.  New 
Haven  &  Northampton  Co.  107  Mass.  352,  and  112  Mass.  334,  that 
the  parties  in  a  former  suit  had  elected  to  treat  the  injury  as  permanent, 
and  the  plaintiff  has  accepted  entire  damages  for  the  future  as  well  as 
the  past,  and  on  that  ground,  which  is  adverted  to  in  the  last  opinion, 
the  case  was  well  decided.  In  Goslin  v.  Corry,  7  Man.  &  G.  342,  345, 
where  a  defendant,  on  the  trial  of  an  action  for  a  libel,  permitted  evi- 
dence to  be  given  of  damage  caused  after  action  brought,  Tindal,  C.  J. 
said:  "By  permitting  this  evidence  to  be  given,  the  defendant  may 
possibly  have  escaped  having  a  second  action  brought  against  him. 
It  was,  therefore,  far  from  an  impolitic  thing  to  allow  damages  to  be 
assessed  for  the  whole  cause  of  complaint  in  one  action."  So  far  as 
there  are  intimations  in  the  successive  opinions  in  Fowle  v.  New  Haven 
&  Northampton  Co.  which  seem  to  make  the  case  an  authority  for  the 
plaintiff's  contention  in  the  case  at  bar,  we  are  not  inclined  to  follow 
them.  The  ruling  was  correct,  and  the  plaintiff's  exceptions  must  be 
overruled. 


SECT.  I.]     STODGHILL  V.  CHICAGO,  BURLINGTON  &  QUINCY  R.  R.  CO.  671 


STODGHILL  v.   CHICAGO,  BURLINGTON  &  QUINCY 

RAILROAD   CO. 

Supreme  Court  of  Iowa,  1880. 

[Reported  53  la.  341.] 

RoTHROCK,  J.  WTien  the  earth  was  deposited  in  the  channel  of  the 
creek  and  raised  to  a  sufficient  height  to  cover  over  the  bridge  and 
make  a  soHd  embankment  upon  which  to  lay  the  railroad  track,  the 
water  in  the  creek  was  at  once  turned  into  the  new  channel.  The 
principak  question  in  the  case  is  whether  the  judgment  for  damages 
in  favor  of  Christopher  Stodghill  was  a  full  adjudication  for  all  in- 
juries to  the  land,  not  only  up  to  the  commencement  of  that  suit,  but 
for  all  that  might  thereafter  arise. 

In  Powers  v.  Council  Bluffs,  45  Iowa,  652,  the  question  being  as  to 
what  is  a  permanent  nuisance,  it  was  held  that  where  it  is  of  such 
character  that  its  continuance  is  necessarily  an  injury,  and  that  when 
it  is  of  a  permanent  character  that  will  continue  without  change  from 
any  cause  but  human  labor,  the  damage  is  original,  and  may  be  at 
once  fully  estimated  and  compensated;  that  successive  actions  wall 
not  lie,  and  that  the  statute  of  limitations  commences  to  run  from  the 
time  of  the  commencement  of  the  injury  to  the  property.  That  was 
a  case  where  the  plaintiff  sought  to  recover  damages  against  the  city 
for  diverting  the  natural  channel  of  a  stream,  called  Indian  Creek,  by 
excavating  a  ditch  in  a  street  in  such  a  manner  that  it  widened  and 
deepened  by  the  action  of  the  water,  so  as  to  injure  plaintiff's  lot 
abutting  upon  said  street.  The  same  rule  was  recognized  in  Towm  of 
Troy  V.  Cheshire  Railroad  Co.,  3  Foster  (N.  H.),  83.  In  that  case  the 
defendant  constructed  the  embankment  of  its  railroad  upon  a  part  of 
a  highway.  The  action  was  by, the  town  to  recover  damages.  The 
plaintiff  claimed  that  it  was  entitled  to  recover  for  the  damages  for 
the  permanent  injury.  The  court  said :  "  The  railroad  is  in  its  nature, 
design  and  use,  a  permanent  structure,  which  cannot  be  assumed  to 
be  liable  to  change;  the  appropriation  of  the  roadway  and  materials  to 
the  use  of  the  railroad  is,  therefore,  a  permanent  diversion  of  that 
property  to  that  new  use,  and  a  permanent  dispossession  of  the  town 
of  it  as  the  place  on  which  to  maintain  a  highway.  The  injury  done 
to  the  town  is,  then,  a  permanent  injury,  at  once  done  by  the  construc- 
tion of  the  railroad,  which  is  dependent  upon  no  contingency  of  which 
the  law  can  take  notice,  and  for  the  injury  thus  done  to  them  they 
are  entitled  to  recover  at  once  their  reasonable  damages." 

The  case  at  bar  is  a  much  stronger  illustration  of  what  is  a  perma- 
nent nuisance  or  trespass  for  which  damages,  past,  present,  and  pros- 
pective, may  be  recovered,  than  Powers  v.  Council  Bluffs.     In  this 


672  STODGHILL  V.  CHICAGO,  BURLINGTON  &  QUINCY  R.  R.  CO.  [cHAP.  VI. 

case  the  damages  to  the  whole  extent  were  at  once  apparent.  The 
water  was  diverted  from  the  natural  channel  as  soon  as  the  embank- 
ment was  raised  to  a  sufficient  height  to  turn  the  current  into  the  new 
channel.  The  injury  to  the  land  was  then  as  susceptible  of  estimation 
as  it  ever  afterwards  could  be,  and  without  calculating  any  future 
contingencies.  In  the  other  case,  when  the  water  commenced  to  flow 
in  the  new  channel  the  plaintiff's  lots  were  not  injured.  It  required 
time  to  wash  away  the  banks  and  work  backward  before  the  injury 
commenced.  It  is  not  necessary  to  dwell  upon  this  question.  The 
rule  established  in  Powers  v.  Council  Bluffs,  supra,  is  decisive  of  this 
case.  See,  also,  Chicago  &  Alton  R.  R.  Co.  v.  Maher,  Supreme  Court 
of  Illinois,  Chicago  Legal  News,  July  5,  1879.  Counsel  for  appellee 
contend  that  the  railroad  embankment  is  not  permanent  because  it  is 
liable  to  be  washed  out  by  freshets  in  the  stream,  and  cannot  stand 
without  being  repaired.  There  is  no  evidence  in  this  record  tending 
to  show  that  the  embankment  is  insufficient  to  accomplish  the  pur- 
pose for  which  it  was  erected;  that  is,  to  make  a  solid  railroad  track 
and  divert  the  water  into  the  new  channel.  One  witness  testified  that 
it  is  from  sixteen  to  eighteen  feet  high.  We  will  not  presume  that  the 
defendant  was  guilty  of  such  a  want  of  engineering  skill  as  not  to  raise 
its  embankments  so  that  they  ^dll  not  be  affected  by  high  water.  It 
seems  to  us  that  a  railroad  embankment,  of  proper  width  and  raised 
to  tlie  proper  height,  is  about  as  permanent  as  anything  that  human 
hands  can  make.  Before  leaving  this  branch  of  the  case,  it  is  proper 
to  say  that  the  acts  complained  of  were  done  within  the  limit  of  the 
defendant's  right  of  way,  and  the  injury,  if  any,  to  the  plaintiff's  land, 
was  consequential.  The  defendant  did  not  enter  upon  plaintiff's  land 
to  take  a  right  of  way  for  its  railroad,  and  Christopher  Stodghill  did 
not  bring  his  action  to  recover  upon  that  ground.  As  we  have  a  statute 
providing  for  proceedings  to  condemn  the  land  necessary  to  be  taken 
for  right  of  way  for  railroad  purposes,  it  may  be  that  the  mode  of  as- 
certaining the  damages  prescribed  by  the  statute  must  be  pursued. 
See  Daniels  v.  C.  &  N.  W.  R.  R.  Co.,  35  Iowa,  129.  That  question, 
however,  is  not  in  this  case,  and  we  only  refer  to  it  lest  we  may  be 
misunderstood. 

Christopher  Stodghill,  in  his  petition  in  the  former  action,  averred 
that  the  diversion  of  the  stream  from  its  natural  course  across  said 
land  perpetually  deprived  him  of  the  use  thereof,  to  his  great  damage 
in  the  prosecution  of  his  business,  and  in  the  depreciation  in  the  value 
of  his  said  farm  and  pasture  lands,  and  he  claimed  damages  in  the  sum 
of  $499.  The  court  instructed  the  jury  in  that  case  that  they  were 
not  to  consider  the  question  in  regard  to  any  permanent  damage  to  the 
land,  for  the  reason  that  the  plaintiff  had  the  right  to  institute  other 
suits  to  recover  damages  sustained  after  the  commencement  of  the 
action. 

But  the  plaintiff  claimed  damages  generally,  and  by  his  pleadings 


SECT.   I.]  PARKER  V.   RUSSELL.  673 

he  and  those  holding  under  him  must  be  bound.  Indeed,  we  do  not 
understand  counsel  for  appellee  to  contend  otherwise.  The  damages 
being  entire  and  susceptible  of  immediate  recovery,  the  plaintiff  could 
not  divide  his  claim  and  maintain  successive  actions.  The  erroneous 
instructions  of  the  court  to  the  jury  did  not  affect  the  question.  It 
was  the  duty  of  the  plaintiff  to  have  excepted  and  appealed.  "An 
adjudication  is  final  and  conclusive,  not  only  as  to  the  matter  actually 
determined,  but  as  to  every  other  matter  which  the  parties  might  have 
litigated  and  have  had  decided,  as  incident  to  or  essentially  connected 
with  the  subject-matter  of  litigation."  Freeman  on  Judgments,  §  249. 
And,  see  Dewey  v.  Peck,  33  Iowa,  242.  Schmidt  v.  Zahensdorf,  30 
Iowa,  498. 

The  foregoing  considerations  dispose  of  the  case,  and  it  becomes 
unnecessary  to  examine  or  determine  other  questions  discussed  by 
counsel. 

Reversed. 


PARKER  V.   RUSSEL&. 
Supreme  Judicial  Court  of  IVIassachusetts,  1882. 

[Reported  133  Mass.  74.] 

Field,  J.  In  an  action  for  the  breach  of  a  contract  to  support  the 
plaintiff  during  his  life,  if  the  contract  is  regarded  as  still  subsisting, 
the  damages  are  assessed  up  to  the  date  of  the  writ,  and  not  up  to  the 
time  when  the  verdict  is  rendered.    Fay  v.  Guynon,  131  Mass.  31. 

But  if  the  breach  has  been  such  that  the  plaintiff  has  the  right  to 
treat  the  contract  as  absolutely  and  finally  broken  by  the  defendant, 
and  he  elects  so  to  treat  it,  the  damages  are  assessed  as  of  a  total  breach 
of  an  entire  contract.  Amos  v.  Oakley,  131  Mass.  413.  Schell  v.  Plumb, 
55  N.  Y.  592.  Remelee  v.  Hall,  31  Vt.  582.  Fales  v.  Hemenway,  64 
Maine,  373.  Sutherland  v.  Wyer,  67  Maine,  64.  Lamoreaux  v.  Rolfe, 
36  N.  H.  33.  Mullaly  v.  Austin,  97  Mass.  30.  Howard  v.  Daly,  61 
N.  Y.  362. 

Such  damages  are  not  special  or  prospective  damages,  but  are  the 
damages  naturally  resulting  from  a  total  breach  of  the  contract,  and 
are  suffered  when  the  contract  is  broken,  and  are  assessed  as  of  that 
time.  From  the  nature  of  the  contract  they  include  damages  for  not 
performing  the  contract  in  the  future  as  well  as  in  the  past.  The  value 
of  the\  contract  to  the  plaintiff  at  the  time  it  is  broken  may  be  some- 
what indefinite  because  the  duration  of  the  life  of  the  plaintiff  is  un- 
certain, but  uncertainty  in  the  duration  of  a  life  has  not,  since  the 
adoption  of  life  tables,  been  regarded  as  a  reason  why  full  relief  in 
damages  should  not  be  afforded  for  a  failure  to  perform  a  contract 
which  by  its  terms  was  to  continue  during  life. 

When  the  defendant,  for  example,  absolutely  refuses  to  perform 


674  PARKER  V.  RUSSELL.  [cHAP.  VI. 

such  a  contract  after  the  time  for  entering  upon  the  performance  has 
begun,  it  would  be  a  great  hardship  to  compel  the  plaintiff  to  be  ready 
at  all  times  during  his  life  to  be  supported  by  the  defendant,  if  the  de- 
fendant should  at  any  time  change  his  mind ;  and  to  hold  that  he  must 
resort  to  successive  actions  from  time  to  time  to  obtain  his  damages 
piecemeal,  or  else  leave  them  to  be  recovered  as  an  entirety  by  his 
personal  representatives  after  his  death. 

Daniels  v.  Newton,  114  Mass.  530,  decides  that  an  absolute  refusal 
to  perform  a  contract  before  the  performance  is  due  by  the  terms  of 
the  contract  is  not  a  present  breach  of  the  contract  for  which  any 
action  can  be  maintained;  but  it  does  not  decide  that  an  absolute  re- 
fusal to  perform  a  contract  after  the  time  and  under  the  conditions  in 
which  the  plaintiff  is  entitled  to  require  performance,  is  not  a  breach 
of  the  contract,  even  although  the  contract  is  by  its  terms  to  continue 
in  the  future. 

The  cases  cited  by  the  defendant  are  not  inconsistent  with  these 
views.  In  Pierce  v.  Woodward,  6  Pick.  206,  the  declaration  was  for  a 
breach  of  a  negative  promise,  namely,  "not  to  set  up  the  business  of 
a  grocer"  within  certain  limits;  and  it  was  held  that  the  damages  could 
be  assessed  only  to  the  date  of  the  writ.  The  defendant  might  at  any 
time,  without  the  consent  of  the  plaintiff,  stop  carr^nng  on  the  busi- 
ness, when  the  plaintiff's  damages  would  necessarily  cease. 

Powers  V.  Ware,  4  Pick.  106,  was  an  action  of  covenant  broken, 
brought  by  the  overseers  of  the  poor,  under  the  St.  of  1793,  c.  59,  §  5, 
for  the  breach  of  a  covenant  to  maintain  an  apprentice  under  an  in- 
denture of  apprenticeship.  The  court  in  the  opinion  speak  of  the  com- 
mon-law rule  in  assessing  damages  only  to  the  date  of  the  writ.  But 
the  statute  under  which  the  action  was  brought  prevented  the  over- 
seers from  treating  the  contract  as  wholly  at  an  end,  because  it  gave 
the  apprentice  a  right  of  action  when  the  term  is  expired,  "  for  damages 
for  the  causes  aforesaid,  other  than  such,  if  any,  for  which  damages 
may  have  been  recovered  as  aforesaid,"  that  is,  by  the  overseers. 

Hambleton  v.  Veere,  2  Saund.  169,  was  an  action  on  the  case  for 
enticing  away  an  apprentice;  and  Ward  v.  Rich,  1  Vent.  103,  was  an 
action  for  abducting  a  wife;  and  neither  throws  much  hght  on  the  rule 
of  damages  for  breach  of  a  contract. 

Horn  V.  Chandler,  1  Mod.  271,  was  covenant  broken  upon  an  m- 
denture  of  an  infant  apprentice,  who  under  the  custom  of  London  had 
bound  himself  to  serve  the  plaintiff  for  seven  years;  the  declaration 
alleged  a  loss  of  service  for  the  whole  term,  a  part  of  which  was  unex- 
pired; on  demurrer  to  the  plea,  the  declaration  was  held  good,  but  it 
was  said  "  that  the  plaintiff  may  take  damages  for  the  departure  onlj' , 
not  the  loss  of  service  during  the  term;  and  then  it  will  be  well  enough." 
But  if  this  be  law  to-day  in  actions  on  indentures  of  apprenticeship, 
it  must  be  remembered  that  they  are  peculiar  contracts,  in  which  the 
rights  and  obligations  of  the  parties  are  often  affected  by  statutory 


^ 


SECT,  II.]         GOODHART  V.   PENNSYLVANIA  RAILROAD  CO.  675 

regulations,  and  in  some  cases  they  cannot  be  avoided  or  treated  as  at 
an  end  at  the  will  of  the  parties. 

In  this  case,  the  declaration  alleges  in  effect  a  promise  to  support 
the  plaintiff  during  his  life,  from  and  after  receiving  the  conveyance 
of  certain  real  estate,  an  acceptance  of  such  conveyance,  and  a  neglect 
and  refusal  to  perform  the  agreement.  These  are  sufficient  allega- 
tions to  enable  the  plaintiff  to  recover  damages  as  for  a  total  breach. 
The  court  instructed  the  jury  that,  "if  the  defendant  for  a  period  of 
about  two  years  neglected  to  furnish  aid  or  support  to  the  plaintiff, 
without  any  fault  of  the  plaintiff,  the  plaintiff  might  treat  the  contract 
as  at  an  end,  and  recover  damages  for  the  breach  of  the  contract  as  a 
whole."  We  cannot  say  that  this  instruction  was  erroneous  as  applied 
to  the  facts  in  evidence  in  the  cause,  which  are  not  set  out. 

The  jury  must  have  found  that  the  plaintiff  did  treat  the  contract 
as  finally  broken  by  the  defendant,  and  the  propriety  of  this  finding 
on  the  evidence  is  not  before  us. 

Judgment  on  the  verdict  for  the  larger  sum. 


SECTION    II. 

Assessment  of  Damage. 

GOODHART  v.  PENNSYLVANIA  RAILROAD  CO. 

Supreme  Court  of  Pennsylvania,  1896. 

[RepoHed  177  Pa.  I.] 

Tort  for  personal  injuries.  Error  was  assigned  on  the  following 
instruction.  "3.  If  the  jury  find  for  the  plaintiff  he  is  entitled  to  re- 
cover such  an  amount  as  will  compensate  him  for  his  pain  and  suf- 
fering. .  .  ."  ^ 

Williams,  J.  .  .  .  Pain  and  suffering  are  not  capable  of  being 
exactly  measured  by  an  equivalent  in  money,  and  we  have  repeatedly 
said  that  they  have  no  market  price.  The  question  in  any  given  case 
is  not  what  it  would  cost  to  hire  some  one  to  undergo  the  measure  of 
pain  alleged  to  have  been  suffered  by  the  plaintiff,  but  what  under  all 
the  circumstances  should  be  allowed  the  plaintiff  in  addition  to  the 
other  items  of  damage  to  which  he  is  entitled,  in  consideration  of  suffer- 
ing necessarily  endured:  Baker  v.  Pennsylvania  Company,  142  Pa. 
503.  This  should  not  be  estimated  by  a  sentimental  or  fanciful  stand- 
ard, but  in  a  reasonable  manner,  as  it  is  wholly  additional  to  the  pecu- 
niary compensation  afforded  by  the  first  and  third  items  that  enter 
into  the  amount  of  the  verdict  in  such  cases.     By  way  of  illustration, 

1  This  short  statement  is  substituted  for  that  of  the  Reporter.  —  Ed. 


676  SULLIVAN  V.  OLD  COLONY  STREET  RAILWAY  CO.       [CHAP.  VI. 

let  us  assume  that  a  plaintiff  has  been  wholly  disabled  from  labor  for 
a  period  of  twenty  days  in  consequence  of  an  injury  resulting  from  the 
negligence  of  another.  This  lost  time  is  capable  of  exact  compensation. 
It  will  require  so  much  money  as  the  injured  man  might  have  reason- 
ably earned  in  the  same  time  by  the  pursuit  of  his  ordinary  calling. 
But  let  us  further  assume  that  these  days  of  enforced  idleness  have 
been  days  of  severe  bodily  suffering.  The  question  then  presented  for 
the  consideration  of  the  jury  would  be,  what  is  it  reasonable  to  add  to 
the  value  of  the  lost  time  in  view  of  the  fact  that  the  days  were  filled 
with  pain  instead  of  being  devoted  to  labor?  Some  allowance  has  been 
held  to  be  proper;  but  in  answer  to  the  question  "how  much?"  the 
only  reply  yet  made  is  that  it  should  be  reasonable  in  amount.  Pain 
cannot  be  measured  in  money.  It  is  a  circumstance  however  that 
may  be  taken  into  the  account  in  fixing  the  allowance  that  should  be 
made  to  an  injured  party  by  way  of  damages.  An  instruction  that 
leaves  the  jury  to  regard  it  as  an  independent  item  of  damages  to  be 
compensated  by  a  sum  of  money  that  may  be  regarded  as  a  pecuniary 
equivalent  is  not  only  inexact,  but  it  is  erroneous.  The  word  "com- 
pensation," in  the  phrase,  "compensation  for  pain  and  suffering,"  is 
not  to  be  understood  as  meaning  price,  or  value,  but  as  describing  an 
allowance  looking  towards  recompense  for,  or  made  because  of,-  the 
suffering  consequent  upon  the  injury.  In  computing  the  damages 
sustained  by  an  injured  person  therefore,  the  calculation  may  include 
not  only  the  loss  of  time,  and  loss  of  earning  power,  but,  in  a  proper 
case,  an  allowance  because  of  suffering. 


SULLIVAN  V.   OLD  COLONY  STREET  RAILWAY  CO. 
Supreme  Judicial  Court  of  Massachusetts,  1908. 

[Reported  197  Mass.  512.] 

Tort  by  a  married  woman  for  personal  injuries  sustained  on  the 
evening  of  April  17,  1905,  when  the  plaintiff  was  a  passenger  on  a  car 
of  the  defendant,  from  the  car  leaving  the  track  and  coming  in  collision 
with  a  post  upon  the  edge  of  a  sidewalk  of  High  Street  in  Dedham. 
Writ  dated  May  3,  1905. 

At  the  trial  in  the  Superior  Court  before  Crosby,  J.,  the  defendant 
admitted  its  liability,  and  the  evidence  related  solely  to  the  question 
of  damages. 

The  plaintift''s  attending  physician  testified  that  the  physical  ex- 
amination on  the  day  following  the  accident  showed,  so  far  as  he  could 
recall,  but  a  single  bruise,  which  was  over  her  right  lower  ribs  and  was 
about  the  size  of  a  silver  dollar;  and  that  she  was  at  the  time  of  the  trial 
and  had  been  since  the  accident  suffering  from  no  organic  trouble,  but 


/     . 


SECT,  n.]  SULLIVAN  V.  OLD  COLONY  STREET  EAILWAY  CO.  677 

from  a  functional  disturbance  of  the  nervous  system,  commonly  known 
as  hysteria,  and  that  it  came  on  principally  as  a  result  of  the  excite- 
ment and  fright  of  the  accident,  which  would  be  an  adequate  cause  of 
her  condition,  though  the  blows  and  "all  those  things"  came  in  as 
contributing  causes.  It  further  appeared  that  about  November  1, 
1905,  she  became  pregnant,  and  that  on  July  5,  1906,  she  gave  birth 
to  a  child  which  lived  just  short  of  forty-eight  hours,  and  then  had 
three  or  four  couAulsions  and  died.  .  .  . 

RuGG,  J.  .  .  .  'Although  careful  instructions  were  given  to  exclude 
the  death  of  the  child  as  an  element  of  damage,  the  jury  were  per- 
mitted to  take  into  accoimt  the  mental  suffering  of  the  mother  on  this 
acd'ount.  She  was  thus  permitted  to  reco^Tr  money  compensation  for 
the  sorrow  and  anguish  endured  as  a  result  of  the  contemplation  of 
the  death  of  her  child  conceived  nearly  seven  months  and  born  four- 
teen months  after  the  injury.  This  is  extending  the  rule  of  damages 
beyond  any  limits  heretofore  recognized.  It  is  an  expansion  which 
finds  no  support  in  any  principle  of  law.  Mental  suffering  connected 
■with  and  growing  out  of  physical  injury  is  a  legitimate  element  to  be 
considered  in  determining  damages  against  a  person  wTongfully  caus- 
ing an  injury.  Such  suffering  is  to  a  greater  or  less  extent  inseparably 
connected  with  physical  harm,  and  flows  from  it  as  a  natural  result. 
Canning  r.  Williamsto\^Ti,  1  Cush.  451.  The  rule  of  damages  is  a  prac- 
tical instrumentality  for  the  administration  of  justice.  The  principle 
on  which  it  is  founded  is  compensation.  Its  object  is  to  afford  tlie 
equivalent  in  money  for  the  actual  loss  caused  by  the  wrong  of  an- 
other. Recurrence  to  this  fundamental  conception  tests  the  soundness 
of  claims  for  the  inclusion  of  new  elements  of  damage.  The  landowner, 
whose  home,  rendered  dear  by  ties  of  ancestry  and  personal  attach- 
ment, is  seized  under  the  power  of  eminent  domain,  has  a  right  to  re- 
ceive no  larger  sum,  on  account  of  tlje  mental  distress  he  endures  in 
leaving  it,  than  a  mere  stranger,  holding  it  purely  for  speculative  pur- 
poses. The  parent,  who  sues  for  the  loss  of  services  of  his  minor  child, 
cannot  recover  for  his  own  sympathetic  sorrow  in  witnessing  the  suffer- 
ings, which  cause  his  loss  of  service.  In  an  action  for  deprivation  of 
consortium,  the  anguish  of  mind  of  the  husband,  in  observing  the  bodily 
pain  of  a  sensitive  wife,  forms  no  element  in  the  damages  he  may 
recover.  These  considerations  apply  peculiarly  to  a  case  like  the 
present.  Wealth  lirings  no  consolation  to  those  who  mourn.  The 
grief  occasioned  by  the  death  of  loved  ones  touches  chords  in  the 
human  soul  which  lie  outside  the  compass  of  pecuniary  relief.  The 
solace,  which  stills  the  voice  of  lamentation,  comes  from  sources  which 
cannot  be  found  tlirough  the  medium  of  money.  The  mental  suffer- 
ing, for  which  damages  can  be  recovered,  therefore,  is  limited  to  that 
which  results  to  the  person  injured  as  the  necessary  or  natural  conse- 
quence of  the  physical  injury.  But  sentiments  of  grief,  sorrow  and 
mourning,  which  are  aroused  by  extraneous  causes,  thoughts  or  re- 


678       BALTIMORE  &  POTOMAC  R.  R,  T.  BAPTIST  CHURCH.       [CHAP.  YI. 

flections,  are  excluded.  The  contemplation  of  the  suffering  and  death 
of  a  child,  begotten  long  after  the'  event  complained  of,  is  too  remote 
from  the  original  physical  injury  to  the  parent  and  too  intangible  and 
ethereal  to  be  connected  with  the  original  wrong  of  the  defendant  as  a 
result  to  be  reasonably  apprehended  from  such  a  cause.  The  law  can- 
not enter  the  realm  of  pure  sentiment  in  this  class  of  case,  and  award 
pecuniary  compensation  for  those  injured  feelings  which  spring  from 
sympathy  and  the  severance  of  ties  of  love  and  affection.  It  follows 
that  there  can  be  no  recovery  for  the  mental  suffering  which  ensues 
from  the  contemplation  of  the  pain,  deformity,  imperfections  or  char- 
acteristics of  any  other  person  or  thing.  See  McDermott  v.  Severe, 
202  U.  S.  600. 

The  extent  to  which  recovery  may  be  had  for  mental  suffering  has 
been  the  subject  of  somewhat  conflicting  decisions  in  various  jurisdic- 
tions. But  so  far  as  we  have  been  able  to  discover,  there  is  unanimity 
of  decision  that,  for  mental  suffering  of  a  class  like  that  under  discus- 
sion, (except  by  express  provision  of  statute,  see  Kelley  v.  Ohio  River 
Hailroad,  58  W.  Va.  216,)  there  can  be  no  recovery.  Maynard  v. 
Oregon  Railroad,  46  Ore.  15.  Bovee  v.  Danville,  53  Vt.  183.  Western 
Union  Telegraph  Co.  v.  Cooper,  71  Texas,  507.  Texas  Mexican  Rail- 
way V.  Douglass,  69  Texas,  694.  Atchison,  Topeka  &  Santa  Fe  Rail- 
road V.  Chance,  57  Kans.  40.  Butler  v.  Manhattan  Railway,  143  N.  Y. 
417.  Lennox-  v.  Interurban  Street  Railway,  104  App.  Div.  (N.  Y.) 
110. 

Exceptions  sustained. 


BALTIMORE  &  POTOMAC   RAILROAD  COIVIPANY  v. 
FIFTH   BAPTIST  CHURCH. 

Supreme  Court  of  the  United  States,  1883. 

[Reported  108  U.  S.  317.] 

Action  in  the  nature  of  an  action  on  the  case  to  recover  damages 
for  the  discomfort  occasioned  by  the  establishment' of  a  building  for 
housing  the  locomotive  engines  of  a  railroad  company  contiguous  to  a 
building  used  for  Sunday  Schools  and  public  worship  by  a  religious 
society.  ^ 

Field,  J.  .  .  .  The  instruction  of  the  court  as  to  the  estimate  of 
damages  was  correct.  Mere  depreciation  of  the  property  was  not  the 
only  element  for  consideration.  That  might,  indeed,  l)e  entirely  dis- 
regarded. The  plaintiff  was  entitled  to  recover  because  of  the  incon- 
venience and  discomfort  caused  to  the  congregation  assembled,  thus 
necessarily  tending  to  destroy  the  use  of  the  building  for  the  purposes 
for  which  it  was  erected  and  dedicated.  The  property  might  not  be 
depreciated  in  its  salable  or  market  value,  if  the  building  had  been 


SECT.  II.]  GKAND  TOWER  COMPANY  V.  PHILLIPS.  679 

entirely  closed  for  those  purposes  by  the  noise,  smoke,  and  odors  of 
the  defendant's  shops.  It  might  then,  perhaps,  have  brought  in  the 
market  as  great  a  price  to  be  used  for  some  other  purpose.  But,  as 
the  court  below  very  properly  said  to  the  jury,  the  congregation  had 
the  same  right  to  the  comfortable  enjoyment  of  its  house  for  church 
purposes  that  a  private  gentleman  has  to  the  comfortable  enjoyment 
of  his  own  house,  and  it  is  the  discomfort  and  annoyance  in  its  use  for 
those  purposes  which  is  the  primary  consideration  in  allowing  damages. 
As  "wath  a  blow  on  the  face,  there  may  be  no  arithmetical  rule  for  the 
estimate  of  damages.  There  is,  however,  an  injury,  the  extent  of  which 
the  jury  may  measure. 

Judgment  affirmed. 


GRAND  TOWER  COMPANY'  v.   PHILLIPS. 

Supreme  Court  of  the  United  States.     1875. 

[Reported  23  Wall.  All.] 

Phillips  &  St.  John,  partners,  sued  the  Grand  Tower  Company — 
a  mining,  manufacturing  and  transportation  corporation  of  Illinois  — 
to  recover  damages  for  breach  of  contract.  .  .  . 

The  declaration  alleged  that  the  company,  without  any  of  the 
grounds  of  excuse  stated  in  the  agreement,  failed  to  deliver  the  monthly 
quota  of  coal  due  in  October,  1870,  although  the  plaintiffs  had  barges 
ready  to  receive  it;  and  that  the  plaintiffs  thereupon  elected  to  take 
said  quota  for  said  month,  amounting  to  15,000  tons,  in  the  next  suc- 
ceeding month,  and  gave  notice  to  the  defendant  accordingly;  but 
that  the  defendant  also,  without  any  excuse,  failed  to  deliver  the  said 
quota  in  November,  1870,  or  the  quota  due  for  the  said  month  of 
November,  or  any  part  thereof,  amounting  in  all  to  30,000  tons  which 
they  thus  failed  to  deliver,  and  that  the  defendant  had  never  delivered 
the  same.  Damages  were  assigned  for  loss  of  profits  (the  price  of  coal 
below  Cairo  that  autumn  being,  as  alleged,  .S9  per  ton),  and  for  the 
expense  of  keeping  their  barges  and  towboats  ready  to  receive  coal  at 
Grand  Tower.  .  .  . 

The  next  inquiry,  therefore,  was  as  to  the  rule  by  which  those  dam- 
ages were  to  be  ascertained.  On  this  point  the  plaintiffs  offered  evi- 
dence to  show  the  prices  of  coal  during  November  and  December,  1870, 
at  all  points  on  the  Mississippi  River,  helow  Cairo  even  to  New  Orleans. 

The  defendants  objected  to  this,  insisting  that  the  price  at  Grand 
Tower  was  the  measure  of  damages  if  the  twenty-five  cents  per  ton 
were  departed  from. 

The  plaintiffs  argued  that  this  was  a  measure  impossible  to  be  ap- 
plied, the  Grand  Tower  Con^pany  having  a  monopoly  of  the  market 
at  Grand  Tower,  and  there  being  no  mines  there  but  the  company's 


680  GRAM)  TOWER  COMPANY  V.  PHILLIPS.  [CHAP.   VI. 

own,  the  company  thus  making  the  only  market  there  then  was,  and 
refusing  to  sell. 

The  court  received  the  evidence  offered.  .  .  . 

The  jury  found  damages  to  the  amount  of  $200,000  (nearly  S7  per 
ton  for  the  alleged  deficit  of  30,000  tons),  and  judgment  having  been 
given  accordingly  the  defendant  brought  the  case  here. 

Bradley,  J.  .  .  .  In  regard  to  the  measure  of  damages,  the  plain- 
tiffs were  allowed  to  show  the  prices  of  coal  during  November  and  De- 
cember, 1870,  at  all  points  on  the  Mississippi  below  Cairo  even  to  New 
Orleans.  And  the  court  charged  the  jury  against  the  exceptions  of  the 
defendant,  that  the  true  measure  of  damages  was  the  cash  value  during 
those  months  of  the  kind  of  coal  mentioned  in  the  contract,  at  Cairo,  or 
points  below  it  on  the  Mississippi  River,  after  deducting  the  contract 
price  of  the  coal  and  the  cost  and  expense  of  transporting  it  thither, 
and  making  due  allowance  for  the  risk  and  hazard  of  such  transporta- 
tion. Now  although  it  is  probable  that  the  plaintiffs  could  have  got 
the  prices  which  the  evidence  showed  were  obtained  for  coal  at  and 
below  Cairo,  had  their  coal  been  furnished  according  to  the  agreement, 
yet  the  rule  of  law  does  not  allow  so  wide  a  range  of  inquiry,  but  re- 
gards the  price  at  the  place  of  delivery  as  the  normal  standard  by  which 
to  estimate  the  damage  for  non-delivery.  It  is  alleged  by  the  plaintiffs 
that  this  rule  would  have  been  a  futile  one  in  their  case,  because  no 
market  for  the  purchase  of  coal  existed  at  Grand  Tower,  except  that  of 
the  defendant  itself,  which,  by  the  very  hypothesis  of  the  action,  re- 
fused to  deliver  coal  to  the  plaintiffs,  and  which  had  the  whole  subject 
"^in  its  own  control.  This  is  certainly  a  very  forcible  answer  to  the  prop- 
osition to  make  the  price  of  coal  at  Grand  Tower  the  only  criterion. 
It  is  apparent  that  the  plaintiff's  would  be  obliged  to  resort  to  some 
other  source  of  supply  in  order  to  obtain  the  coal  which  the  defendant 
ought  to  have  furnished  them.  And  it  would  not  be  fau",  under  the 
circumstances  of  the  case,  to  confine  them  to  the  prices  at  which  the 
defendant  chose  to  sell  the  coal  to  other  persons.  The  true  rule  would 
seem  to  be,  to  allow  the  plaintiffs  to  show  the  price  they  would  have 
had  to  pay  for  coal  in  the  quantities  which  they  were  entitled  to  receive 
it  under  the  contract,  at  the  nearest  available  market  where  it  could 
have  been  obtained.  The  difference  between  such  price  and  the  price 
stipulated  for  by  their  contract,  with  the  addition  of  the  increased 
expense  of  transportation  and  hauling  (if  any),  would  be  the  true  meas- 
ure of  damages.  To  this  is  properly  to  be  added  the  claim  (if  any)  for 
keeping  boats  and  barges  ready  at  Grand  Tower  for  the  receipt  of  coal. 

But  the  prices  of  coal  at  New  Orleans,  at  Natchez,  and  other  places 
of  distril)ution  and  sale,  although  they  might  aft'ord  a  basis  for  esti- 
mating the  profits  which  the  plaintiff's  might  have  made  had  the  coal 
stipulated  for  been  delivered  to  them,  cannot  be  adopted  as  a  guide  to 
the  actual  damage  sustained  so  long  as  any  more  direct  method  is 
within  reach.  .  .  .      Judgment  reversed  and  a  venire  de  novo  awarded. 


SECT.  II.]  KOUNTZ  V.  KIRKPATRICK.  681 


KOUNTZ  V.   KIRKPATRICK. 
Supreme  Court  of  Pennsylvania,  1872. 

[Reported  72  Pa.  376.] 

Agnew,  J.  On  the  7th  of  June  1S69,  Koiintz  sold  to  Kirkpatrick  & 
Lyons,  two  thousand  barrels  of  crude  petroleum,  to  be  delivered  at  his 
option,  at  any  time  from  the  date,  until  the  31st  of  December  1869, 
for  cash  on  delivery,  at  thirteen  and  a  half  cents  a  gallon.  On  the  24th 
of  June  1869,  Kirkpatrick  and  Lyons  assigned  this  contract  to  Fisher  & 
Brothers.  Kountz  failed  to  deliver  the  oil.  He  defends  on  the  ground 
that  Kirkpatrick  &  Lyons,  and  others  holding  like  contracts  for  de- 
livery of  oil,  entered  into  a  combination  to  raise  the  price,  by  buying 
up  large  quantities  of  oil,  and  holding  it  till  the  expiration  of  the  year 
1869,  and  thus  to  compel  the  sellers  of  oil  on  option  contracts,  to  pay  a 
heavy  difference  for  non-delivery.  Fisher  &  Brothers,  the  assignees  of 
Kountz 's  contract,  were  not  in  the  combination,  and  the  principal 
questions  are  whether  they  are  affected  by  the  acts  of  Kirkpatrick  & 
Lyons,  subsequent  to  the  assignment;  whether  notice  of  the  assign- 
ment to  Kountz  was  necessary  to  protect  fhem,  and  what  is  the  true 
measure  of  damages.  The  court  below  held  that  Fisher  &  Brothers, 
as  assignees  of  the  contract,  were  not  affected  by  the  acts  of  Kirk- 
patrick &  Lyons,  as  members  of  the  combination  in  the  following 
October  and  subsequently,  and  that  notice  in  this  case  w^as  not  essen- 
tial to  the  protection  of  Kountz. 

The  common-law  rule  as  to  the  assignability  of  choses  in  action  no 
longer  prevails,  but  in  equity  the  assignee  is  looked  upon  as  the  true 
owner  of  the  chose.    He  may  set  off  the  demand  as  his  own :  ^Morgan  v. 
Bank  of  North  America,  8  S.  &  R.  73;  Ramsey's  Appeal,  2  Watts  228. 
The  assignee  takes  the  chose  subject  to  the  existing  equities  between 
the  original  parties  before  assignment,  and  also  to  payment  and  other 
defences  to  the  instrument  itself,  after  the  assignment  and  before  notice 
of  it;  but  he  cannot  be  affected  by  collateral  transactions,  secret  trusts 
or  acts  unconnected  with  the  subject  of  the  contract:  Davis  v.  Barr 
9  S.  &  R.  137;  Beckley  v.  Eckert,  3  Barr  292;  Mott  v.  Clark,  9  Id.  399 
Taylor  r.  Gitt,  10  Id.  428;  Northampton  Bank  v.  Balliet,  8  W.  &  S.  318 
Corsen  v.  Craig,  1  Wash.  C.  C.  R.  424;  1  Parsons  on  Cont.  193,  196 
2StoryonCont.,  §  396,  n. 

The  act  of  Kirkpatrick  &  Lyons,  complained  of  as  members  of  an 
unlawful  combination  to  raise  the  price  of  oil,  was  long  subsequent  to 
their  assignment  of  Kountz's  contract,  and  was  a  mere  tort.  The  con- 
tract was  affected  only  by  its  results  as  an  independent  act.  It  does 
not  seem  just,  therefore,  to  visit  this  effect  upon  Fisher  &  Brothers,  the 
antecedent  assignees.     The  act  is  wholly  collateral  to  the  ownership 


682  '  KOUNTZ  V.  KIRKPATRICK.  [CH,\P.  VI. 

of  the  chose  itself,  and  there  is  nothing  to  Hnk  it  to  the  chose,  so  as  to 
bind  the  assignors  and  assignees  together.  After  the  assignment,  there 
being  no  guaranty,  the  assignors  had  no  interest  in  the  "performance 
of  this  particular  contract,  and  no  motive,  therefore,  arising  out  of  it 
to  raise  the  price  on  Kountz.  The  acts  of  Kirkpatrick  &  Lyons  seem, 
therefore,  to  have  no  greater  or  other  bearing  on  this  contract  than  the 
acts  of  any  other  members  of  the  combination,  who  were  strangers  to 
the  contract. 

In  regard  to  notice  of  the  assignment  to  Kountz,  it  is  argued,  that 
having  had  no  notice  of  it,  if  he  knew  of  the  conspiracy  to  raise  the 
price  of  oil,  and  thus  to  affect  his  contract,  and  that  Kirkpatrick  & 
Lyons  were  parties  to  it,  he  might  have  relied  on  that  fact  as  a  defence, 
and  refused  to  deliver  the  oil,  and  claimed  on  the  trial  a  verdict  for 
merely  nominal  damages  for  his  breach  of  his  contract.  Possibly  in 
such  a  special  case,  want  of  notice  might  have  constituted  an  equity, 
but  the  answer  to  this  case  is,  that  no  such  point  was  made  in  the  court 
below,  and  there  does  not  seem  to  be  any  evidence  that  Kountz  knew 
of  the  conspiracy,  and  Kirkpatrick  &  Lyons's  privity,  and  relying  on 
these  facts,  desisted  from  purchasing  oil  to  fulfil  his  contract  with  them. 
As  the  case  stood  before  the  court  below,  we  discover  no  error  in  the 
answers  of  the  learned  judge  on  this  part  of  it. 

The  next  question  is  upon  the  proper  measure  of  damages.  In  the 
sale  of  chattels,  the  general  rule  is,  that  the  measure  is  the  difference 
between  the  contract  price  and  the  market  value  of  the  article  at  the 
time  and  place  of  delivery  under  the  contract.  It  is  unnecessary  to 
cite  authority  for  this  well  established  rule,  but  as  this  case  raises  a 
novel  and  extraordinary  question  between  the  true  market  value  of 
the  article,  and  a  stimulated  market  price,  created  by  artificial  and 
fraudulent  practices,  it  is  necessary  to  fix  the  true  meaning  of  the  rule 
itself,  before  we  can  approach  the  real  question.  Ordinarily,  when  an 
article  of  sale  is  in  the  market,  and  has  a  market  value,  there  is  no  dif- 
ference between  its  value  and  the  market  price,  and  the  law  adopts  the 
latter  as  the  proper  evidence  of  the  value.  This  is  not,  however,  be- 
cause value  and  price  are  really  convertible  terms,  but  only  because 
they  are  ordinarily  so  in  a  fair  market.  The  primary  meaning  of  value 
is  worth,  and  this  worth  is  made  up  of  the  useful  or  estimable  qualities 
of  the  thing:  See  Webster's  and  Worcester's  Dictionaries.  Price,  on 
the  other  hand,  is  the  sum  in  money  or  other  equivalent  set  upon  an 
article  by  a  seller,  which  he  demands  for  it:  Id.  Ibid.  Value  and  price 
are,  therefore,  not  synonymes,  or  the  necessary  equivalents  of  each 
other,  though  commonly,  market  value  and  market  price  are  legal 
equivalents.  When  we  examine  the  authorities,  we  find  also  that  the 
most  accurate  writers  use  the  phrase  market  value,  not  market  price. 
Mr.  Sedgwick,  in  his  standard  work  on  the  measure  of  damages,  4th 
ed.  p.  2()0,  says:  "  Where  contracts  for  the  value  of  chattels  are  broken 
by  the  vendor's  failing  to  deliver  property  according  to  the  terms  of 


SECT.  II.]  KOUNTZ  V.  KIRKPATRICK.  683 

the  bargain,  it  seems  to  be  well  settled,  as  a  general  rule,  both  in  Eng- 
land and  the  United  States,  that  the  measure  of  damages  is  the  differ- 
ence between  the  contract  price  and  the  market  value  of  the  article  at 
the  time  it  should  be  delivered  upon  the  ground ;  that  this  is  the  plain- 
tiff's real  loss,  and  that  with  this  sum,  he  can  go  into  the  market  and 
supply  himself  with  the  same  article  from  another  vendor."  Judge 
Rogers  uses  the  same  term  in  Smethurst  v.  Woolston,  5  W.  &  S.  109: 
"The  value  of  the  article  at  or  about  the  time  it  is  to  be  delivered,  is 
the  measure  of  damages  in  a  suit  by  the  vendee  against  the  vendor  for 
a  breach  of  the  contract."  So  said  C.  J.  Tilghman,  in  Girard  v.  Tag- 
gart,  5  S.  &  R.  32.  Judge  Sergeant,  also,  in  O'Conner  v.  Forster,  10 
Watts  422,  and  in  Mott  v.  Danforth,  6  Id.  308.  But  as  even  accurate 
writers  do  not  always  use  words  in  a  precise  sense,  it  would  be  unsatis- 
factory to  rely  on  the  common  use  of  a  word  only,  in  making  a  nice  dis- 
tinction between  terms.  It  is  therefore  proper  to  inquire  into  the  true 
legal  idea  of  damages  in  order  to  determine  the  proper  definition  of 
the  term  value.  Except  in  those  cases  where  oppression,  fraud,  malice 
or  negligence  enter  into  the  question,  "the  declared  object  (says  Mr. 
Sedgwick,  in  his  work  on  Damages)  is  to  give  compensation  to  the  party 
injured  for  the  actual  loss  sustained,"  4th  ed.,  pp.  28,  29;  also,  pp. 
36,  37.  Among  the  many  authorities  he  gives,  he  quotes  the  language 
of  C.  J.  Shippen,  in  Bussy  t'.  Donaldson,  4  Dallas  206.  "As  to  the 
assessment  of  damages  (said  he),  it  is  a  rational  and  legal  principle, 
that  the  compensation  should  be  equivalent  to  the  injury."  "The 
rule,"  said  C.  J.  Gibson,  "is  to  give  actual  compensation,  by  gradu- 
ating the  amount  of  the  damages  exactly  to  the  extent  of  the  loss." 
"The  measure  is  the  actual,  not  the  speculative  loss:"  Forsyth  v. 
Palmer,  2  Harris  97.  Thus,  compensation  being  the  true  purpose  of 
the  law,  it  is  obvious  that  the  means  employed,  in  other  words,  the 
evidence  to  ascertain  compensation,  must  be  such  as  truly  reaches  this 
end. 

It  is  equally  obvious,  when  we  consider  its  true  nature,  that  as  evi- 
dence, the  market  price  of  an  article  is  only  a  means  of  arriving  at 
compensation ;  it  is  not  itself  the  value  of  the  article,  but  is  the  evidence 
of  value.  The  law  adopts  it  as  a  natural  inference  of  fact,  })ut  not  as  a 
conclusive  legal  presumption.  It  stands  as  a  criterion  of  value,  be- 
cause it  is  a  common  test  of  the  ability  to  purchase  the  thing.  But  to 
assert  that  the  price  asked  in  the  market  for  an  article  is  the  true  and 
only  test  of  value,  is  to  abandon  the  proper  object  of  damages,  viz., 
compensation,  in  all  those  cases  where  the  market  evidently  does  not 
afford  the  true  measure  of  value.  This  thought  is  well  expressed  by 
Lewis,  C.  J.,  in  Bank  of  Montgomery  v.  Reese,  2  Casey  146.  "  The  para- 
mount rule  in  assessing  damages  (he  says),  is  that  every  person  un- 
justly deprived  of  his  rights,  should  at  least  be  fully  compensated  for 
the  injury  he  sustained.  Where  articles  have  a  determinate  value  and 
an  unlimited  production,  the  general  rule  is  to  give  their  value  at  the 


684  KOUNTTZ  V.  KIRKPATRICK.  [CIL\.P,  VI. 

time  the  owTier  was  deprived  of  them,  with  interest  to  the  time  of 
\erdict.  This  rule  has  been  adopted  because  of  its  convenience,  and 
because  it  in  general  answers  the  object  of  the  law,  which  is  to  com- 
pensate for  the  injury.  In  relation  to  such  articles,  the  supply  usually 
keeps  pace  with  the  demand,  and  the  fluctuations  in  the  value  are  so 
inconsiderable  as  to  justify  the  courts  in  disregarding  them  for  the  sake 
of  convenience  and  uniformity.  In  these  cases,  the  reason  why  the 
value  at  the  time  of  conversion,  A\ath  interest,  generally  reaches  the 
justice  of  the  case,  is  that  when  the  owner  is  deprived  of  the  articles, 
he  may  purchase  others  at  that  price.  But  it  is  manifest  that  this 
would  not  remunerate  him  where  the  article  could  not  be  obtained 
elsewhere,  or  where  from  restrictions  on  its  production,  or  other  causes, 
its  price  is  necessarily  subject  to  considerable  fluctuation."  This 
shows  that  the  market  price  is  not  an  invariable  standard,  and  that 
the  converse  of  the  case  then  before  Judge  IvCaais  is  equally  true  — 
that  is  to  say  —  when  the  market  price  is  unnaturally  inflated  by  un- 
lawful and  fraudulent  practices,  it  cannot  be  the  true  means  of  ascer- 
taining what  is  just  compensation.  It  is  as  unjust  to  the  seller  to  give 
the  purchaser  more  than  just  compensation,  as  it  is  to  the  purchaser 
to  give  him  less.  Right  upon  this  point,  we  have  the  language  of  this 
court  in  the  case  of  a  refusal  by  a  purchaser  to  accept:  Andrews  v." 
Hoover,  8  Watts  240.  It  is  said :  "  The  jury  is  bound  by  a  measure  of 
damages  where  there  is  one,  but  not  always  by  a  particular  means  for 
its  ascertainment.  Now  the  measure  in  a  case  like  the  present,  is  the 
difference  between  the  price  contracted  to  be  paid  and  the  value  of 
the  thing  when  it  ought  to  have  been  accepted;  and  though  a  resale 
is  a  convenient  and  often  satisfactory  means,  it  does  not  follow  that 
it  is,  nor  was  it  said  in  Girard  v.  Taggert,  to  be  the  only  one.  On  the 
contrary,  the  propriety  of  the  direction  there,  that  the  jury  were  not 
bound  by  it,  if  they  could  find  another  more  in  accordance  with  the 
justice  of  the  case,  seems  to  have  l)een  admitted;  the  very  thing  com- 
plained of  here."  Judge  Strong  took  the  same  view  in  Trout  v.  Ken- 
nedy, 11  Wright  393.  That  was  the  case  of  a  trespasser,  and  the  jury 
had  been  told  that  the  plaintiff  was  entitled  to  the  just  and  full  value 
of  the  property,  and  if  at  the  time  of  the  trespass  the  market  was  de- 
pressed, too  much  importance  was  not  to  be  given  to  that  fact.  "If 
(says  Judge  Strong)  at  any  particular  time,  there  be  no  market  de- 
mand for  an  article,  it  is  not  of  course  on  that  account  of  no  value. 
What  a  thing  a'stIII  bring  in  the  market  at  a  given  time,  is  perhaps  the 
measure  of  its  value  then;  but  it  is  not  the  only  one.'"  These  cases 
plainly  teach  that  value  and  market  price  are  not  always  con\ertible 
terms;  and  certainly  there  can  be  no  difference  in  justice  or  law,  in  an 
unnatural  depression  and  an  unnatural  exaltation  in  the  market  price 
—  neither  is  the  true  and  only  measure  of  value. 

These  general  principles  in  the  doctrine  of  damages  and  authorities, 
prove  that  an  inflated  speculative  market  price,  not  the  result  of  natu- 


SECT.  II.]  KOUNTZ  V.  KIRKPATRICK.  685 

ral  causes,  but  of  artificial  means  to  stimulate  prices  by  unlawful  com- 
binations for  the  purposes  of  gain,  cannot  be  a  legitimate  means  of 
estimating  just  compensation.  It  gives  to  the  purchaser  more  than  he 
ought  to  have,  and  compels  the  seller  to  pay  more  than  he  ought  to 
give,  and  it  is  therefore  not  a  just  criterion.  There  is  a  case  in  our  ov.nx 
state,  bearing  strongly  on  this  point:  Blydenburgh  ct  al.  v.  Welsh  et  al., 
Baldwin's  Rep.  331.  Judge  Baldwin  had  charged  the  jury  in  these 
words :  "  If  you  are  satisfied  from  the  evidence,  that  there  was  on  that 
day  a  fixed  price  in  the  market,  you  must  be  governed  by  it;  if  the 
evidence  is  doubtful  as  to  the  price,  and  \\'itnesses  vary  in  their  state- 
ments, you  must  adopt  that  which  you  think  best  accords  with  the 
proof  in  the  case."  In  granting  a  new  trial,  Judge  Hopkinson  said:  "  It 
is  the  price  —  the  market  price  —  of  the  article  that  is  to  furnish  the 
measure  of  damages.  Now  what  is  the  price  of  a  thing,  particularly 
the  market  price?  We  consider  it  to  be  the  value,  the  rate  at  which 
the  thing  is  sold.  To  make  a  market,  there  must  be  buying  and  selling, 
purchase  and  sale.  If  the  owner  of  an  article  holds  it  at  a  price  which 
nobody  wall  give  for  it,  can  that  be  said  to  be  its  market  value?  Men 
sometimes  put  fantastical  prices  upon  their  property.  For  reasons 
personal  and  peculiar,  they  may  rate  it  much  above  what  any  one 
would  give  for  it.  Is  that  the  value?  Further,  the  holders  of  an 
article,  flour,  for  instance,  under  a  false  rumor,  which,  if  true,  would 
augment  its  value,  may  suspend  their  sales,  or  put  a  price  upon  it,  not 
according  to  its  value  in  the  actual  state  of  the  market,  but  according 
to  what  in  their  opinion  will  be  its  market  price  or  value,  provided  the 
rumor  shall  prove  to  be  true.  In  such  a  case,  it  is  clear,  that  the  asking 
price  is  not  the  worth  of  the  thing  on  the  given  day,  but  what  it  is 
supposed  it  will  be  worth  at  a  fviture  day,  if  the  contingency  shall 
happen  which  is  to  give  it  this  additional  value.  To  take  such  a  price 
as  the  rule  of  damages,  is  to  make  the  defendant  pay  what  in  truth 
never  was  the  value  of  the  article,  and  to  give  to  the  plaintiff  a  profit 
by  a  breach  of  the  contract,  which  he  never  would  have  made  by  its 
performance." 

The  case  of  suspended  sales  upon  a  rumor  tending  to  enhance  the 
price,  put  by  Judge  Hopkinson,  bears  no  comparison  to  the  case  al- 
leged here,  where  a  combination  is  intentionally  formed  to  buy  up  oil, 
hold  it  till  the  year  is  out,  and  thus  force  the  market  price  up  purposely 
to  affect  existing  contracts,  and  compel  the  sellers  to  pay  heavy  dam- 
ages for  non-fulfilment  of  their  l)argains.  In  the  same  case.  Judge 
Hopkinson  further  said:  "We  did  not  intend  that  they  (the  jury) 
should  go  out  of  the  limits  of  the  market  price,  nor  to  take  as  that 
price  whatever  the  holders  of  the  coffee  might  choose  to  ask  for  it; 
substituting  a  fictitious,  unreal  value,  which  nobody  would  give,  for 
that  at  w^hich  the  article  might  be  bought  or  sold."  "  In  determining," 
says  an  eminent  UTiter  on  contracts,  "what  is  the  market  value  of 
property  at  any  particular  time,  the  jury  may  sometimes  take  a  wide 


686  KOUNTZ  V.  KIRKPATRICK.  [CHAP.  VI. 

ran^^e;  for  this  is  not  always  ascertainable  by  precise  facts,  but  must 
sometimes  rest  on  opinion ;  and  it  would  seem  that  neither  party  ought 
to  gain  or  lose  by  a  mere  fancy  price,  or  an  inflated  and  accidental 
value,  suddenly  put  in  force  by  some  speculative  movement,  and  as 
suddenly  passing  away.  The  question  of  damages  by  a  market  value 
is  peculiarly  one  for  a  jury:"  Parsons  on  Contracts,  vol.  2,  p.  482, 
ed.  1857.  In  Smith  v.  Griffith,  3  Hill  337-8,  C.  J.  Nelson  said:  "I 
admit  that  a  mere  speculating  price  of  the  article,  got  up  by  the  con- 
tri^'ance  of  a  few  interested  dealers,  is  not  the  true  test.  The  law,  in 
regulating  the  measure  of  damages,  contemplates  a  range  of  the  entire 
market,  and  the  average  of  prices,  as  thus  found,  running  through  a 
reasonable  period  of  time.  Neither  a  sudden  and  transient  inflation, 
nor  a  depression  of  prices,  should  control  the  question.  These  are 
often  accidental,  promoted  by  interested  and  illegitimate  combina- 
tions, for  temporary,  special  and  selfish  objects,  independent  of  the 
objects  of  lawful  commerce;  a  forced  and  violent  perversion  of  the 
laws  of  trade,  not  within  the  contemplation  of  the  regular  dealer,  and 
not  deserving  to  be  regarded  as  a  proper  basis  upon  which  to  deter- 
mine the  value,  when  the  fact  becomes  material  in  the  administration 
of  justice."  I  may  close  these  sajangs  of  eminent  jurists  with  the 
language  of  Chief  Justice  Gibson,  upon  stock-jobbing  contracts;  Wil- 
son T.  Davis,  5  W.  &  S.  523:  "To  have  stipulated,"  says  he,  "for  a 
right  to  recruit  on  separate  account,  would  have  given  to  the  agree- 
ment an  appearance  of  trick,  like  those  of  stock-jobbing  contracts, 
to  deliver  a  given  number  of  shares  at  a  certain  day,  in  which  the 
seller's  performance  has  been  forestalled  by  what  is  called  cornering; 
in  other  words,  buying  up  all  the  floating  shares  in  the  market.  These 
contracts,  like  other  stock-jobbing  transactions,  in  which  parties  deal 
upon  honor,  are  seldom  subjected  to  the  test  of  judicial  experiment, 
but  they  would  necessarily  be  declared  fraudulent." 

Without  adding  more,  I  think  it  is  conclusively  sho^Ti  that  what  is 
called  the  market  price,  or  the  quotations  of  the  articles  for  a  given 
day,  is  not  always  the  only  evidence  of  actual  value,  but  that  the  true 
value  may  be  drawn  from  other  sources,  when  it  is  showTi  that  the 
price  for  the  particular  day  had  been  unnaturally  inflated.  It  remains 
only  to  ascertain  whether  the  defendant  ga^'e  such  evidence  as  to  re- 
quire the  court  to  submit  to  the  jury  to  ascertain  and  determine  the 
fair  market  value  of  crude  oil  per  gallon,  on  the  31st  of  December  1869, 
as  demanded  by  the  defendant  in  his  fifteenth  point.  There  was  evi- 
dence from  which  the  jury  might  have  adduced  the  following  facts, 
viz.:  That  in  the  month  of  October  1869,  a  number  of  persons  of  large 
capital  and  among  them  Kirkpatrick  &  Lyons,  combined  together  to 
purchase  crude  oil,  and  hold  it  until  the  close  of  the  year  1869;  that 
these  persons  were  the  holders,  as  purchasers,  of  a  large  number  of 
sellers'  option  contracts,  similar  to  the  one  in  suit;  that  they  bought  oil 
largely,  and  determined  to  hold  it  from  the  market  until  the  year  1870 


SECT.  II.]  KOUNTZ  V.  KIRKPATRICK.  687 

before  selling;  that  oil,  in  consequence  of  this  combination,  ran  up  in 
price,  in  the  face  of  an  increased  supply,  until  the  31st  day  of  De- 
cember 1869,  reaching  the  price  of  seventeen  to  eighteen  cents  per 
gallon,  and  then  suddenly  dropped  as  soon  as  the  year  closed.  Major 
Frew,  one  of  the  number,  says:  It  was  our  purpose  to  take  the  oil, 
pay  for  it,  and  keep  it  until  January  1st  1870,  otherwise  we  would 
have  been  heading  the  market  on  ourselves.  Mr.  Long  says  that  on 
the  3d  of  January  1870  he  sold  oil  to  Fisher  &  Brother  (the  plaintiffs) 
at  thirteen  cents  a  gallon,  and  could  find  no  other  purchaser  at  that 
price.  Several  witnesses,  dealers  in  oil,  testify  that  they  knew  of  no 
natural  cause  to  create  such  a  rise  in  price,  or  to  make  the  difference 
in  price  from  December  to  January.  It  was  testified,  on  the  contrary, 
that  the  winter  production  of  oil  was  greater  in  December  1869  than 
in  former  years  by  several  thousand  barrels  per  day,  a  fact  tending  to 
reduce  the  price,  when  not  sustained  by  other  means.  Mr.  Benn  says 
he  knew  no  cause  for  the  sudden  fall  in  price  on  the  1st  January  1870, 
except  that  the  so-called  combination  ceased  to  buy  at  the  last  of 
December  1869. 

It  was,  therefore,  a  fair  question  for  the  jury  to  determine  whether 
the  price  which  was  demanded  for  oil  on  the  last  day  of  December 
1869  was  not  a  fictitious,  unnatural,  inflated  and  temporary  price,  the 
result  of  a  combination  to  "bull  the  market,"  as  it  is  termed,  and  to 
compel  sellers  to  pay  a  false  and  swollen  price  in  order  to  fulfil  their 
contracts.  If  so,  then  .such  price  was  not  a  fair  test  of  the  value  of  the 
oil,  and  the  jury  would  be  at  liberty  to  determine,  from  the  prices  be- 
fore and  after  the  day,  and  from  other  sources  of  information,  the 
actual  market  value  of  the  oil  on  the  31st  of  December  1869.  Any 
other  cause  would  be  unjust  and  injurious  to  fair  dealers,  and  would 
enable  gamblers  in  the  article  to  avail  themselves  of  their  own  wrong, 
and  to  wrest  from  honest  dealers  the  fruits  of  their  business.  It  cannot 
be  possible  that  a  "corner,"  such  as  took  place  a  few  weeks  since  in 
the  market  for  the  stock  of  a  western  railroad  company,  where  shares, 
worth  in  the  ordinary  market  about  sixty  dollars  each,  were  by  the 
secret  operations  of  two  or  three  large  capitalists,  forced  up  in  a  few 
days  to  a  price  over  two  hundred  dollars  a  share,  can  be  a  lawful 
measure  of  damages.  Men  are  not  to  be  stripped  of  their  estates  by 
such  cruel  and  wrongful  practices;  and  courts  of  justice  cannot  so 
wholly  ignore  justice  as  to  assume  such  a  false  standard  of  compensa- 
tion. Our  views  upon  the  effect  of  the  affidavit  of  defence,  on  which 
the  learned  judge  in  a  great  measure  ruled  the  question  of  damages, 
will  be  expressed  in  the  case  of  Kountz  v.  The  (.'itizens'  Oil  Refining 
Co.,  in  an  opinion  to  be  read  immediately, 

Judximcnt  reversed,  and  a  venire  facias  de  novo  awarded. 

Sharswood  and  Williams,  JJ.,  dissented  on  the  question  of  the 
n^easure  of  damages.  ^ 


688  REDMOND  T.  MIERICAN  MANUFACTURING  CO.      [ciIAP.  VI. 


REDMOND    V.    AMERICAN    MANUFACTURING    COMPANY. 
Court  of  Appeals,  New  York,  1890. 

[Reported  121  N.  Y.  415.] 

O'Brien,  J.  The  plaintiff  was  the  inventor  of  a  machine,  upon 
whicli  he  procured  a  patent,  for  the  purpose  of  inserting^  and  fasten- 
ing rivets  in  the  joints  of  umbrella  ribs  and  stretchers  where  they 
are  fastened  together.  The  defendant,  a  corporation  organized  for 
manufacturing  purposes,  was  engaged  in  making  and  selling  the  ribs  and 
other  parts  of  umbrellas.  The  plaintiff  and  defendant  entered  into 
an  agreement  to  the  eft'ect  that  the  plaintiff  should  manufacture  and 
set  lip  in  the  defendant's  factory  fourteen  of  these  machines,  and 
should  for  a  certain  period,  personally  or  by  skilled  agents,  superin- 
tend the  operation  of  the  same  and  instruct  defendant's  employes  in 
the  operation  thereof.  The  defendant  during  this  period  was  to  fur- 
nish sufficient  work  for  the  operation  of  the  machines  to  their  full 
capacity,  and  to  pay  the  plaintiff's  agents  for  their  services  in  super- 
intending the  operation  of  the  machines  and  instructing  its  employes 
in  their  use  out  of  the  saving  that  might  be  effected  by  the  machines 
in  the  cost  of  doing  the  work  which  previously  had  been  done  by  hand 
at  a  certain  specified  price  per  dozen  sets.  At  the  expiration  of  this 
period  the  defendant  was  to  have  the  option  of  returning  the  ma- 
chines to  the  plaintiff'  or  of  purchasing  the  same  and  paying  therefor 
a  certain  agreed  price,  which  should  be  equal  to  the  sum  found  to  be 
the  sa\dng  on  300,000  dozen  sets  by  said  machines  working  to  their 
full  capacity,  compared  with  the  cost  of  doing  the  same  work  by 
hand  at  the  prices  paid  therefor  and  specified  in  the  agreement.  The 
plaintiff  manufactured  and  put  the  machines  in  the  defendant's  fac- 
tory and  furnished  persons  to  superintend  the  operation  thereof,  but 
he  claims  that  the  defendant  failed  to  furnish  sufficient  work  during 
the  period  of  trial  to  enable  said  machines  to  be  operated  to  their  full 
capacity,  and  that,  notwithstanding  this  failure,  the  machines  did 
actually  effect  a  saving  of  fully  one-half  in  the  previous  cost  of  the 
work.  At  the  conclusion  of  the  trial  period  the  defendant  did  not 
elect  to  purchase  the  machines.  The  title  to  the  same  never  passed 
from  the  plaintiff,  and  on  October  27,  1884,  he  demanded  of  the  de- 
fendant the  return  to  him  of  the  property.  This  demand  gave  rise  to 
negotiations  between  the  parties,  which,  however,  ended  without  any 
result,  whereupon  the  plaintiff'  brought  this  action  to  recover  the 
possession  of  the  fourteen  machines,  or  their  value  in  case  a  delivery 
to  him  could  not  be  made,  and  the  sum  of  $15,000  as  damages  for  the 
detention  thereof  after  demand. 

On  the  trial  of  the  action  in  the  Superior  Court,  the  plaintiff  re- 


SECT.   II.]  REDMOND  V.  AMERICAN  MANUFACTURING  CO.  689 

covered,  the  jury  assessing  the  value  of  the  property  at  $2,100,  and 
under  the  charge  of  the  court  the  plaintiff  was  awarded  $445,  being  the 
interest  on  the  value  of  the  machines  from  the  time  of  the  demand, 
as  damages  for  the  unlawful  detention. 

The  plaintiff,  at  the  trial,  offered  to  prove  the  value  of  the  use  of 
the  machines  from  the  time  of  the  demand  as  his  damages  for  their 
detention,  but  the  evidence  was  excluded  under  the  defendant's  ob- 
jection, the  plaintiff  excepting.  The  plaintiff  appealed  from  so  much 
of  the  judgment  in  his  favor  as  limited  the  damages  for  detention  to 
the  interest  on  the  value  of  the  property,  and  the  General  Term  has 
affirmed  the  ruling  at  the  trial  on  this  question  of  damages. 

The  property  in  question  was  evidently  manufactured  and  de- 
livered to  the  defendant  for  the  purpose  of  sale.  The  precise  sum  to 
be  paid  was  not  specified  in  dollars  and  cents,  but  depended  upon 
what  the  machines  could  accomplish  in  the  way  of  saving  for  the  de- 
fendant within  a  designated  period  of  time  under  certain  conditions, 
and  in  this  way  the  price  of  the  article  was  capal)le  of  being  ascer- 
tained by  a  process  of  calculation  pro\'ided  for  in  the  agreement  under 
which  it  was  delivered  by  the  plaintiff.  The  record  does  not  show 
that  the  machines  had  any  marketable  value,  and  it  is  to  be  inferred 
from  the  proofs  at  the  trial  that  they  had  been  recently  invented  and 
had  not  been  yet  brought  into  such  general  use  as  to  furnish  any  re- 
liable or  certain  standard  of  value  for  their  use  by  the  defendant. 
The  agreement  under  which  they  came  into  the  defendant's  posses- 
sion shows  that  their  general  utility  and  capacity  had  not  been  fully 
established,  and  that  they  were  considered  by  both  parties  as  some- 
what of  an  experiment.  The  property  being  without  a  market  value 
the  parties  at  the  trial  were  obliged  to  submit  the  case  to  the  jury 
upon  evidence  given  by  both  sides  as  to  their  intrinsic  value  or 
the  cost  of  production.  There  is  no  complaint  on  the  part  of  the 
plaintiff  that  the  property  was  less  valuable  at  the  trial  on  account 
of  the  manner  in  wliich  it  was  used,  or  for  any  other  reason  than  when 
it  was  delivered  to  the  defendant.  The  WTong  that  the  plaintiff  has 
suffered  consisted  entirely  in  the  neglect  of  the  defendant  to  return 
the  property  to  the  plaintiff  when  he  demanded  it.  The  property 
was  rightfully  in  defendant's  possession  until  the  parties,  at  the  end 
of  the  trial  period,  failed  to  agree  upon  a  price  for  it  upon  the  basis 
of  the  agreement.  The  plaintiff'  was  entitled  to  have  the  value  of  the 
property,  at  the  time  of  the  trial,  found  and  awarded  to  him  in  case 
the  property  itself  could  not  be  returned  (N.  Y.  G.  &  I.  Co.  r.  Flynn, 
55  N.  Y.  563),  and  the  jury  assessed  the  value  as  of  that  time.  If 
the  interest  on  this  value  during  the  time  that  the  defendant  retained 
the  property  after  demand  is,  under  the  circumstances  of  this  case, 
the  legal  compensation  for  the  defendant's  wrong  in  not  returning 
the  property  on  demand,  the  plaintiff'  has  ho  reason  for  complaint. 
It  is  urged  upon  this  appeal  on  the  authority  of  Allen  v.  Fox  (51  N.  \. 


690  REDMOND  V.  AMERICAN  MANUFACTURING  CO.      [CHAP.  VI. 

562)  that  he  was  entitled  to  recover  as  damages  for  the  unlawful  de- 
tention of  the  property  such  sum  as  he  could  prove  to  be  the  value 
of  the  use  of  the  property  during  the  period  that  it  was  wrongfully  de- 
tained. That  was  an  action  to  recover  the  possession  of  a  horse,  and 
what  is  there  called  the  usable  value  of  the  horse,  was  held  to  be  a 
proper  measure  of  damages  for  its  detention.  The  learned  judge,  who 
gave  the  opinion  in  the  case,  admits  that  the  interest  on  the  value  of 
the  property,  at  the  time  of  the  trial,  is  generally  the  proper  measure 
of  damages  for  its  A\Tongful  detention  when  it  consists  of  merchandise 
kept  for  sale,  and  all  other  articles  of  property,  valuable  only  for 
sale  or  consumption.  In  actions  to  recover  the  possession  of  specific 
personal  property,  many  cases,  no  doubt,  may  and  do  arise  where  the 
interest  would  not  furnish  to  the  owner  of  the  property  a  just  or  suffi- 
cient indemnity  for  his  loss;  but  such  cases  are  special  and  exceptional, 
and  it  is  scarcely  possible  to  group  them  under  any  general  rule  or 
principle.  There  is  a  manifest  difference  between  the  case  of  the 
WTongful  detention  of  a  horse  or  other  property  which  is  in  constant 
and  daily  use,  and  the  usable  value  of  wliich  is  well  known  and  readily 
ascertained,  and  property  of  the  character  of  that  which  was  the 
subject  of  controversy  in  this  case.  Here  the  property  was  manufac- 
tured and  delivered  to  the  defendant  for  the  purpose  of  sale,  like  any 
other  article  of  merchandise.  It  is  not  claimed,  and  it  is  not  at  all 
likely  that  the  plaintiff  could  have  put  the  machines  to  any  other 
use  while  the  defendant  detained  them  after  the  demand.  When 
machinery,  in  operation,  is  taken  from  the  owner  of  a  factory,  who 
requires  it  for  immediate,  constant  and  daily  use,  and  detained  by  the 
\\Tong-doer,  such  an  act  would  probably  inflict  upon  the  owner  damages 
which  could  not  be  compensated  by  the  interest  on  its  value  for  the 
period  of  the  wrongful  detention.  But,  when,  as  in  this  case,  the  maker 
of  a  patented  machine  or  article,  desiring  to  introduce  it  into  general 
use,  delivers  it  with  a  view  to  a  sale  and  afterward  becomes  entitled  to 
have  the  same  returned  to  him  by  reason  of  the  failure  of  the  party 
to  whom  it  is  delivered  on  trial  to  accept  it,  or  comply  with  the  terms 
and  conditions  upon  which  it  was  delivered,  the  interest  on  its  price 
or  value  from  the  time  of  the  wrongful  detention  to  the  trial  furnishes 
a  just  indemnity  for  the  WTong  and  the  proper  rule  of  damages  in  such 
cases. 

We  think  that  the  record  in  this  case  does  not  disclose  any  of  those 
special  features  calling  for  a  larger  measure  of  damages  than  that 
generally  applicable  to  cases  for  the  conversion  of  personal  property, 
namely,  the  interest  on  its  faij  value  from  the  time  of  the  conver- 
sion. (Brizsee  v.  Maybee,  21  W^end.  144;  Rowley  v.  Gibbs.  14  Johns. 
385.) 

The  judgment  is  right,  and  should  be  affirmed. 


SECT.  II.]         NATIONAL  BANK  OF  COMMERCE  V.  NEW  BEDFORD.         691 


NATIONAL  BANK  OF  COIVIMERCE  v.  NEW  BEDFORD. 
Supreme  Judicial  Court  of  Massachusetts,  1892. 

[Reported  155  Mass.  313.] 

Holmes,  J.  The  petitioner  appealed  to  the  Superior  Court,  under 
the  St.  of  1890,  c.  127,  §  1,  from  the  decision  of  the  assessors  of  New 
Bedford,  refusing  to  abate  any  part  of  a  tax  upon  its  shares  at  a  valua- 
tion of  $120  per  share  of  the  par  value  of  $100.  The  Superior  Court 
sent  the  case  to  a  commissioner  to  report  the  facts,  and  afterwards 
heard  the  case  on  the  rejDort  without  other  evidence.  It  found  as  a 
fact,  from  the  report,  that  for  the  purposes  of  taxation  in  this  case  the 
fair  cash  value  of  the  shares,  at  which  they  are  required  to  be  assessed 
by  the  Pub.  Sts.  c.  13,  §  8,  was  their  market  value  as  found  by  the 
commissioner,  and  ruled  that  upon  the  facts  the  assessors  had  no 
right  to  assess  the  stock  upon  the  basis  of  the  value  as  showTi  by  the 
capital  stock,  the  surplus  fund,  and  the  undi\"ided  profits,  irrespective 
of  the  other  evidence  in  the  case,  and  that  such  assessment  should  be 
abated  as  to  the  excess  above  the  fair  cash  value  found  to  be  the  market 
value  as  first  stated.  This  ruling  was  excepted  to.  Substantially  the 
same  point  is  presented  another  way  by  an  exception  to  a  refusal  to 
rule  that  the  assessors  had  a  right  to  assess  the  stock  upon  the  real 
worth  of  the  property  of  the  bank,  all  tilings  considered. 

The  difference  between  the  parties  arises  from  findings  by  the  com- 
missioner, that,  assuming  that  the  bank  was  to  continue  its  business, 
the  fair  market  value  of  the  shares  on  May  1,  1890,  was  $102  per 
share,  but  that,  assuming  that  it  was  to  close  its  business,  convert  its 
assets  into  cash,  and  divide  the  cash  among  the  shareholders,  the  fair 
value  of  each  shareholder's  interest  was  $126  per  share,  from  which  $6 
is  to  be  deducted  for  real  estate.  The  discrepancy  is  accounted  for  by 
a  loss  of  confidence  in  the  management,  and  the  fact  that  for  some 
years  the  bank  had  paid  low  dividends. 

The  main  question  argued  before  us  was  whether  the  foregoing  rul- 
ing and  refusal  were  right.  There  is  a  strong  argument  that  the  re- 
spondent was  not  entitled  to  any  ruling  as  to  what  the  assessors  had 
or  had  not  a  right  to  do,  but  that  the  only  business  of  the  Superior 
Court  was  to  determine  afresh,  on  the  facts  and  within  the  limits  of 
its  appellate  action,  what  a  fair  assessment  would  be,  and  what,  if 
any,  abatement  is  reasonable.  Pub.  Sts.  c.  11,  §§  69,  71.  If,  however, 
we  are  called  on  to  go  further,  in  order  to  see  that  the  Superior  Court 
did  not  adopt  a  false  standard,  we  must  notice  that  the  court  did  not 
rule  that  under  no  circumstances  would  the  assessors  have  had  a  right 
to  assess  on  the  basis  mentioned,  but  only  that  it  was  wrong  upon  the 
facts  found.    One  of  the  facts  found  is  that  in  this  case  the  fair  cash 


692        NATIONAL  BANK  OF  COMMERCE  V.  NEW  BEDFORD.       [CHAP.  VI.  ,.t,| 

value  of  the  shares  was  their  market  value.  Of  course  the  fair  cash 
value  of  stock  may  be  its  market  value,  so  that,  putting  the  respondent's 
case  at  the  highest,  the  petitioner  must  prevail  upon  the  merits,  unless 
the  court  was  not  justified  in  its  finding  of  fact  by  the  commissioner's 
report. 

The  thing  of  which  the  fair  cash  value  is  to  be  found  is  the  stock  or 
shares  of  the  corporation.  Value  refers  to  exchange^  The  cash  value 
of  an  article  is  the  amount  of  cash  for  which  it  will  exchange  in  fact. 
That  amount  depends  on  the  opinion  of  the  public  of  possible  buyers, 
or  of  that  part  of  it  which  will  pay  the  most.  If  in  their  opinion  the 
stock  is  worth  only  $102  per  share,  —  if  that  is  all  that  the  stock  will 
sell  for,  —  it  is  vain  to  show  that  the  net  value  of  the  property  of  the 
corporation,  that  is  to  say,  the  opinion  of  the  public  about  a  chief 
component  element  of  the  value  of  the  stock,  if  uncontrolled,  logically 
leads  to  a  different  value  for  the  stock.  It  has  been  recognized  judicially 
that  the  value  of  the  property  and  the  value  of  the  stock  might  differ, 
for  reasons  which  have  been  found  to  exist  in  this  case.  Common- 
wealth V.  Hamilton  Manuf.  Co.  12  Allen,  298,  302,  303.  Common- 
wealth V.  Cary  Improvement  Co.  98  Mass.  19,  22. 

Moreover,  if  there  seems  to  be  a  difference  in  the  value  of  the  stock 
when  arrived  at  in  the  two  ways  under  consideration,  generally  speak- 
ing, the  effect  of  the  value  of  the  property  of  a  corporation  upon  the 
^'alue  of  its  stock  will  be  estimated  more  accurately  by  the  interested 
and  trained  judgment  of  the  market  than  it  can  be  by  a  court.  As  a 
rule,  the  fair  cash  value  of  shares  having  a  market  is  best  ascertained 
by  finding  the  price  at  which  they  sell  in  the  market. 

But  in  truth  the  commissioner's  report  discloses  no  difference  in  the 
value  of  the  stock,  according  as  it  is  got  at  one  way  or  the  other.  The 
difference  in  the  value  found  by  him  depends  upon  whether  it  is  as- 
sumed that  the  corporation  was  to  continue  its  business  or  was  to  be 
wound  up.  If  it  was  to  continue  its  })usiness,  $102  was  the  fair  market 
value  for  a  share;  that  is  to  say,  $102  was  the  full  amount  of  cash  that 
could  be  got  or  ought  to  be  got  for  a  share  in  that  bank,  its  property 
and  prospects  being  what  they  were.  The  bank  actually  was  to  con- 
tinue its  business,  therefore  that  was  the  actual  fair  cash  value  of  its 
shares.  What  they  would  have  been  worth  in  a  different  state  of  facts, 
if  the  bank  had  come  to  a  stop,  does  not  matter.  Actual  values  are  ' 
based  upon  existing  states  of  fact,  not  upon  hypotheses;  and  the  actual 
value  of  shares  in  a  going  concern  depends  not  only  upon  its  property, 
but  also  upon  its  prospects,  since  shares  both  represent  property  and 

prospects.  ... 

"  Judgment  for  the 'petitioner. 


SECT.  II.]        WHITWH.\M  V.  WESTMINSTER  BRYMBO  C.  &  C.  CO.         693 


WHITWHAM  V.   WESTMINSTER  BRYMBO 
COAL  &  COKE  CO. 

High  Court  of  Justice,  Chancery  Division,  1896. 

[Reported  [1896]  1  Ch.  894.] 

Motion  to  vary  the  report  of  one  of  the  official  referees,  which 
raised  the  question  as  to  the  measure  and  method  of  assessing  the 
damage  done  to  the  plaintiffs'  land  by  a  trespass  committed  by  the 
defendants  in  depositing  spoil  thereon  from  their  colliery.  The  facts, 
so  far  as  material,  were  as  follows: 

•  The  plaintiffs  were  the  owners  of  1a.  3r.  9p.  of  land  situate  in  a 
long,  narrow  valley  to  the  north  of  the  defendants'  colliery;  in  1888 
this  was  the  only  land  on  the  north  side,  wathin  a  reasonable  distance, 
which  the  defendants  could  have  procured  for  tipping  purposes.  The 
defendants  had  used  this  land  since  March,  1888,  for  the  deposit  of 
spoil  from  their  colliery,  and  in  the  course  of  their  operations  had  cov- 
ered some  3r.  20p.  with  spoil.  The  defendants  claimed  the  right  to 
use  the  land  for  this  purpose  by  virtue  of  an  agreement;  but  at  the 
trial  of  this  action  before  Romer,  J.  in  March,  1894,  it  was  held  that 
there  was  no  such- agreement.  By  the  judgment  it  was  declared  that 
the  land  in  question  belonged  to  the  plaintiffs,  and  that  the  defendants 
had  been  guilty  of  committing  a  trespass  upon  the  land  by  tipping  or 
depositing  thereon  spoil,  and  an  injunction  was  granted  restraining 
them  from  further  tipping.  It  was  further  ordered  that  the  defendants 
should  deliver  possession  of  the  land  to  the  plaintiffs,  and  an  inquiry 
was  directed  what,  if  any,  sum  of  money  was  proper  to  be  awarded  to 
be  paid  by  the  defendants  to  the  plaintiffs  by  way  of  damages  for  in- 
jury sustained  by  the  plaintiff's  since  March,  1888,  by  reason  of  the 
defendants'  trespass  by  tipping  or  depositing  spoil  or  other  materials 
upon  the  land. 

On  August  3,  1895,  the  official  referee  made  his  report,  in  which, 
after  finding  the  amount  of  damages  to  be  £200,  he  proceeded  as 
follows :  — 

(2.)  The  defendants  have  by  their  trespasses  since  March  24,  1888, 
rendered  land  belonging  to  the  plaintiffs,  1a.  3r.  9p.  in  extent,  value- 
less for  any  but  tipping  purposes. 

(3.)  In  assessing  the  said  sum  of  £200,  I  have  taken  as  the  measure 
of  damage  the  diminished  value  of  the  plaintiffs'  land,  in  extent  1a.  3r. 
9p.,  caused  by  the  defendants'  said  trespass  since  March,  1888. 

(4.)  The  plaintiffs  contended  before  me,  through  their  counsel, 
that  the  proper  measure  of  damage  was  the  reasonable  value  to  the 
defendants  on  March  24,  1888,  of  the  plaintiff's'  land  for  tipping  pur- 
poses, and  claimed  interest  at  4  per  cent  on  such  value  from  the  re- 
spective dates  at  whicli  the  tipping  was  done. 


694         WHITWHAJVI  V.  WESTMINSTER  Bm^IBO  C.   &   C.  CO.      [CHAP.   VI. 

(5.)  If  the  proper  measure  of  damage  be  that  mentioned  in  para- 
graph 4,  I  find  that  the  sum  to  be  paid  to  the  plaintiffs  as  damages  is 
£963,  and  £141  5s.  interest,  making  together  the  sum  of  £1104  5s. 

(6.)  In  either  case,  on  whichever  basis  the  damages  are  assessed, 
I  am  of  opinion  that  the  costs  of  the  inquiry  should  be  paid  by  the 
defendants. 

The  wa}'  in  which  the  referee  arrived  at  these  results  is  sufficiently 
discussed  in  the  judgment. 

The  plaintiffs  now  moved  to  vary  the  report,  claiming  damages  and 
interest  in  accordance  with  the  alternative  finding  in  paragraph  5  of 
the  report. 

Chitty,  J.  The  question  is  what  is  the  measure  of  damages  in  the 
circumstances  of  this  case.  [After  stating  the  result  of  the  trial  of  the 
action  before  Romer,  J.,  and  the  terms  of  the  inquiry,  which,  he  ob- 
served, left  open  the  question  of  the  measure  of  damages,  his  Lordship 
continued :  — ] 

In  answer  to  the  inquiry  the  official  referee  has  made  a  special  re- 
port. He  finds,  first,  that  the  sum  proper  to  be  paid  by  way  of  damage 
is  the  sum  of  £200;  secondly,  that  the  defendants  have  by  their  tres- 
passes rendered  land  belonging  to  the  plaintiffs,  1a.  3r.  9p.  in  extent, 
valueless  for  any  but  tipping  purposes;  and,  thirdly,  that  in  assessing 
the  £200  he  had  taken  as  the  measure  of  damage  the  diminished  value 
of  the  plaintiffs'  land,  in  extent  1a.  3r.  9p.,  caused  by  the  defendants' 
trespass.  In  arri^■ing  at  the  £200  the  referee  appears  to  have  taken  the 
land  at  its  agricultural  value,  striking  a  mean  between  the  estimates 
of  the  valuers,  and  making  an  allowance  in  respect  of  a  cottage  affected. 
Here  the  referee  has  followed  the  rule  ordinarily  applied  in  actions  for 
injury  to  land:  see  Mayne  on  Damages,  5th  ed.  p.  430.  In  Jones  v. 
Gooday,  where  the  defendant  in  widening  a  ditcli  had  cut  into  the 
plaintiff's  land  and  carried  away  soil,  it  was  decided  that  the  plaintiff 
was  entitled  to  be  compensated  for  the  loss  he  had  actually  sustained, 
and  not  for  the  expense  of  restoring  the  land  to  its  original  condition. 
The  plaintiffs  do  not  contend  that  the  measure  of  damages  is  the  ex- 
pense of  restoring  the  land  to  its  former  state;  but  they  contend  that 
the  proper  measure  is  the  reasonable  value  of  the  land  for  tipping 
purposes,  being  the  purposes  for  which  the  defendants  actually  used 
the  land.  After  referring  to  this  contention  with  a  claim  for  interest, 
the  referee  finds,  that  if  the  proper  measure  of  damage  be  that  so 
contended  for,  the  sum  to  be  paid  is  £963  and  £141  5s.  for  interest, 
making  together  £1104  5s.  The  question,  then,  is  whether  the  value 
of  the  land  for  tipping  purposes  ought  to  be  taken  into  consideration 
in  assessing  the  damage.  The  plaintiffs'  land  is  situate  in  a  long, 
narrow  valley  to  the  north  of  the  defendants'  colliery,  which  is  a  short 
distance  off.  There  is  no  other  land  on  the  north  of  the  colliery  within 
a  reasonable  distance  which  the  defendants  could  have  procured  for 
tipping  purposes.    The  sum  of  £963  is  arrived  at  by  treating  the  tip- 


SECT.  II.]      WHITWHAM  V.  WESTMINSTER  BRYIVIBO  C.  &  C.  CO.  695 

ping  value  at  £500  an  acre.  Of  the  total  area  of  the  land  3r.  20p. 
have  been  covered  by  the  defendants  with  spoil ;  the  remaining  portion, 
3r.  29p.,  is  still  available  for  tipping  purposes,  but  for  no  other  purpose. 
There  is  no  authority  directly  in  point.  The  plaintiffs  rely  on  the  de- 
cisions in  reference  to  mining  operations  as  shewing  the  true  principle. 
In  Martin  v.  Porter,  Parke  B.  directed  the  jury  that  the  plaintiff  was 
entitled  to  compensation  for  the  defendants  passing  through  his  coal 
mine  with  coals  gotten  from  his  own  mines,  and  ought  to  pay  as  for 
a  way-leave.  Under  the  leave  given  to  move  to  reduce  the  damages, 
the  point  whether  this  direction  was  right  might  have  been  raised; 
but  it  was  not  raised  on  the  motion  made.  The  actual  damage  sustained 
by  the  plaintiff  by  reason  of  the  wrongful  user  of  the  underground  way 
would  have  been  trifling;  but  the  principle  acted  upon  was,  that  the 
plaintiff  was  entitled  to  be  compensated  upon  the  footing  of  a  grant 
of  a  wav-leave  at  a  reasonable  rent,  which  was  shewn  to  be  2d.  a  ton 
in  the  neighbourhood.  In  Jegon  v.  Vivian  the  Master  of  the  Rolls 
(Lord  Romilly)  and  Lord  Hatherley  held  that  the  plaintiffs  were  en- 
titled to  an  inquiry  what  ought  to  be  paid  by  way  of  way-leave  for  the 
passage  of  coal  through  their  mines.  In  that  case  the  defendants 
were  trespassers  who  had  held  on  after  a  lease  granted  by  a  tenant  for 
life  under  a  power,  which  lease  was  avoided  by  the  plaintiffs,  the  re- 
versioners. In  regard  to  the  coal  which  they  had  WTongfully  gotten, 
the  defendants  were  ordered  to  pay  damages,  not  on  the  more  severe 
principle,  but  on  the  principle  of  their  being  (to  use  a  phrase  employed 
in  these  cases)  "innocent  trespassers";  yet  in  regard  to  the  way,  they 
had  to  pay  compensation  on  the  footing  of  a  way-leave.  In  Phillips 
V.  Homfray  the  damages  were  directed  to  be  assessed  on  the  same 
principle;  but  there  the  appellants  were  treated  as  wilful  or  guilt}^ 
trespassers. 

Now  the  question  is  whether  the  principle  of  the  way-leave  cases 
applies  to  a  case  of  tipping.  They  are  founded  on  the  principle  that  a 
wrongdoer  shall  not  make  a  profit  out  of  his  own  wrong,  and  that  the 
value  of  the  land  for  the  purposes  for  which  it  was  actually  used  by 
the  wrongdoer  ought  to  be  taken  into  consideration.  There  is  this 
distinction  between  the  way-leave  cases  and  the  case  before  me,  that 
the  user  of  the  way  for  the  passage  of  coal  is  underground,  and,  in 
some  instances,  surreptitious;  whereas  in  the  case  of  tipping  the  user 
is  on  the  surface  and  open;  in  the  present  case  the  fact  appears  to  be, 
that  the  plaintiffs  were  aware  that  the  tipping  was  going  on.  But  I 
cannot  see  that  this  distinction  makes  any  substantial  difference.  I 
think  that  the  principle  does  apply,  and  that  the  plaintiffs  are  entitled 
to  damages  on  the  basis  of  what  would  be  a  reasonable  sum  to  be  paid 
for  the  use  of  their  land  by  the  defendants  for  tipping  purposes. 

But  applying  this  principle  consistently  to  the  facts,  I  think  that 
the  plaintiffs  are  not  entitled  to  the  whole  of  the  £1104  5s.  First,  in 
regard  to  interest  claimed,  I  think  that  all  interest  ought  to  be  ex- 


696  BEALE  V.  BOSTON.  [CHAP.  VI. 

eluded  from  the  computation  of  damage.  To  give  interest  would  be 
to  treat  the  plaintiffs  as  having  invested  their  damages  at  interest  in 
the  hands  of  the  defendants.  Secondly,  on  the  principle  which  I  adopt 
I  think  the  plaintiffs  are  entitled  to  damages  on  the  higher  footing  for 
so  much  only  of  the  land  as  was  actually  used  by  the  defendants  for 
tipping.  The  plaintiffs  at  the  trial  obtained  an  injunction  restraining 
the  defendants  from  further  tipping;  the  defendants  cannot  there- 
fore use  the  rest  of  the  land  for  tipping.  To  make  the  defendants  pay 
the  whole  of  the  £963  would  be  to  make  them  pay  for  the  fee-simple 
value  of  the  land  for  tipping  when  they  have  used  part  only  of  tlje  land 
for  that  purpose,  and  are  prevented  by  the  injunction  from  so  using 
the  remainder.  There  is  still  an  unexhausted  tipping  value  in  part  of 
the  land.  It  was  admitted  by  counsel,  as  I  understood,  that  of  the 
total  area  of  1a.  3r.  9p.  only  3r.  20p.  were  covered  by  spoil,  and  that 
the  remainder,  namely,  3r.  29p.,  or  rather  more  than  half,  was  still 
available  for  tipping,  although  valueless,  as  the  referee  finds,  for  any 
other  purpose.  It  would  be  vuijust  to  make  the  defendants  pay  for  the 
3r.  29p.  on  the  principle  of  a  tipping  leave  which  they  have  not  directly 
or  indirectly  enjoyed.  In  respect  of  this  part  of  the  land  the  defendants 
ought  to  pay  on  the  footing  of  the  diminished  value  of  the  land  to  the 
plaintiffs.  The  plaintiffs'  counsel  said  that  on  the  evidence  it  would 
be  impracticable  for  the  plaintiffs  to  sell  or  let  the  3r.  29p.  for  tipping 
purposes  to  any  persons  other  than  the  defendants;  and  that  the  de- 
fendants, having  found  land  to  the  south  of  their  colliery,  no  longer 
required,  and  would  not  take,  this  portion  of  the  land  for  tipping. 
Assuming  this  statement  to  be  correct,  it  is  immaterial.  The  plaintiffs 
cannot  recover  any  greater  sum  for  damages  than  is  given  by  the  just 
application  of  the  principle  which  they  invoke. 

I  take  it  that  the  parties  will  be  able  readily  to  apportion  the  damages 
in  accordance  with  this  judgment.  If  they  cannot  agree,  the  matter 
must  go  back  to  the  referee  with  a  proper  direction. 

[The  sum  of  £550  was  subsequently  arranged  by  counsel  in  court  as 
the  amount  of  the  damages  to  be  awarded  in  accordance  with  the  judg- 
ment, and  for  this  sum  interest  at  4  per  cent  from  the  date  of  this 
judgment  was  given.  The  defendants  were  also  ordered  to  pay  the 
costs.] 


■     BEALE   V.   BOSTON. 
Supreme  Judicial  Court  of  Massachusetts,  1896. 

[Reported  166  Mass.  53.] 

Allen,  J.  The  petitioner  had  bought  a  tract  of  ten  acres  of  land, 
and  laid  it  out  into  house  lots  and  streets,  one  of  the  streets  being  called 
Tuttle  Street,  which  he  had  built  and  graded.    He  had  sold  various 


SECT.  II.]  _  BEALE  V.  BOSTON.  697 

lots,  with  rights  of  way  and  drainage,  but  with  no  ouTiership  of  the 
fee  in  Tuttle  Street,  and  he  owned  other  lots  abutting  thereon,  as  well 
as  some  other  land  near  by,  abutting  on  another  street  running  from 
Tuttle  Street  at  right  angles. 

At  the  trial,  the  petitioner,  in  seeking  to  prove  his  damages  caused 
by  the  taking  of  Tuttle  Street,  offered  evidence  tending  to  show  its 
value  other  than  the  market  value ;  but  the  court  ruled  that  no  e\adence 
concerning  the  value  of  the  land  taken,  i.  e.,  the  way  itself,  could  be 
admitted  except  e\adence  as  to  the  market  value  of  Tuttle  Street, 
subject  to  the  easements  which  the  petitioner  had  sold  before  the 
taking,  and  the  market  value  of  Tuttle  Street  after  the  taking,  when  it 
had  become  a  pul^lic  way.  And  the  court  instructed  the  jury  that 
they  should  find  the  fair  market  value,  before  the  taking,  of  the  peti- 
tioner's land  abutting  on  Tuttle  Street,  and  add  to  it  the  fair  market 
value,  before  the  taking,  of  the  land  embraced  wdthin  the  limits  of  the 
street,  subject  to  the  easements  therein;  and  that  they  should  then 
find  the  fair  market  value  of  the  first  tract,  after  the  taking,  and  add 
it  to  the  fair  market  value  of  the  second  tract,  after  the  taking;  the 
damages  to  be  awarded  to  the  petitioner  being  the  difference  between 
the  sum  of  the  two  market  values  before  the  taking,  and  the  sum  of 
the  two  market  values  after  the  taking. 

The  jury  were  thus  limited  exclusively  to  a  consideration  of  market 
values;  and  this,  having  regard  to  the  nature  and  situation  of  the 
land  taken,  we  think  was  erroneous.  Ordinarily,  where  the  value  of 
lands  or  goods  is  to  be  ascertained,  and  they  are  of  such  a  kind  and  so 
situated  as  to  be  available  for  sale  in  the  ordinary  course  of  trade  or 
dealing,  the  market  value  is  perhaps  the  b^st  test,  and  under  such  cir- 
cumstances it  is  usually  adopted  in  this  Commonwealth.  Lawrence 
V.  Boston,  119  Mass.  126.  Moulton  v.  Newburyport  Water  Co.  137 
Mass.  163,  167.  But  market  value  is  not  a  univereal  test,  and  cases 
often  arise  where  some  other  mode  of  ascertaining  value  must  be  re- 
sorted to.  May  V.  Boston,  158  Mass.  21,  29.  Boston  &  Albany  Rail- 
road V.  Cambridge,  159  Mass.  283.  Handforth  v.  Maynard,  154  Mass. 
414.  Mather  v.  American  Express  Co.  138  Mass.  ^5.  Green  v.  Boston 
&  Lowell  Railroad,  128  Mass.  221.  Murray  v.  Stanton,  99  Mass.  345. 
Stickney  v.  Allen,  10  Gray,  352.  Boom  Co.  v.  Patterson,  98  V.  S.  403, 
408.  Reed's  Petition,  13  N.  H.  381.  Troy  v.  Cheshire  Railroad,  23 
N.  H.  83. 

The  petitioner  retained  the  owTiership  of  Tuttle  Street,  subject  to 
rights  of  way  and  drainage  which  he  had  granted  therein.  This  title 
might  not  be  salable  in  the  ordinary  course  of  dealing,  and  yet  it  might 
have  a  real  value  to  him,  for  which  he  was  entitled  to  l>e  paid.  The 
damage  to  abutting  lots  could  be  measured  by  the  diminution,  if  any, 
of  market  value.  Lots  not  abutting  were  properly  excluded  from  con- 
sideration as  too  remote,  and  only  affected  in  common  with  the  rest 
of  the  neighborhood.    The  petitioner  was  entitled  to  compensation  for 


698  d.jldy  v.  condit.  [chap.  vi. 

his  interest  which  was  taken  in  Tuttle  Street,  and  for  the  injury,  if  any, 
to  his  remaining  lots  which  abutted  thereon.  Taking  both  together, 
how  much  loss  did  he  suffer?  How  much  less  was  the  value  of  what 
he  had  left,  after  the  taking,  than  the  value  of  the  whole  before  the 
taking?  Lincoln  r.  Commonwealth,  164  ]Mass.  368,  376.  So  far  as 
the  abutting  lands  are  concerned,  regard  should  be  had  to  the  market 
value;  but  so  far  as  his  interest  in  Tuttle  Street  is  concerned,  other 
considerations  come  in. 

The  court  excluded  e\nidence  of  the  fair  value  of  the  improvement 
made  by  the  petitioner  in  grading  Tuttle  Street,  and  in  putting  a 
sewer  into  it,  and  also  the  increased  cost  of  building  on  the  petitioner's 
remaining  abutting  lots,  by  reason  of  the  existing  city  ordinances  and 
regulations  applicable  to  public  streets,  and  the  increased  cost  of  re- 
moving the  sand,  sod,  and  loam  therefrom.  But  in  estimating  the 
loss  to  the  petitioner  we  think  all  these  particulars  might  be  con- 
sidered, not  as  showing  independent  and  distinct  items  to  be  added 
to  his  loss,  (Squire  v.  Somerville,  120  Mass.  579,)  but  as  elements 
which  might  be  considered  in  determining  the  real  value  of  what  he 
had  before  the 'taking,  and  of  what  he  had  afterwards.  Central 
Bridge  r.  Lowell,  15  Gray,  106,  111.  Cushing  v.  Boston,  144  Mass. 
317,  Butchers'  Slaughtering  &  Melting  Association  v.  Commonwealth, 
163  Mass.  386.     Manson  v.  Boston,  163  Mass.  479.  .  .  . 

In  the  opinion  of  a  majority  of  the  court,  the  entry  must  be, 

Exceptions  sustained. 


DADY  V.  CONDIT. 
Supreme  Court  of  Illinois.     1904. 

[Reported  209  III.  488.] 

Action  for  breach  of  contract  to  convey  a  quarter  section  of  land 
near  the  city  of  Waukegan.  A  verdict  for  the  plaintiff  was  found, 
and  on  appeal  judgment  on  the  verdict  was  affirmed.  Defendant 
seeks  reversal  on  several  grounds,  one  of  them  relating  to  the  com- 
petency of  certain  evidence.^ 

Ricks,  J.  Appellant  first  insists  that  there  was  error  in  the  trial 
of  this  case  by  "allowing  incompetent  evidence  to  be  introduced  by 
the  appellee  as  to  the  value  of  the  land  for  speculative  purposes  and 
future  uses  under  altered  conditions,  which  might  or  might  not  arise." 
We  have  examined  the  evidence  referred  to,  and,  under  the  circum- 
stances of  this  ease,  are  of  the  opinion  that  its  admission  was  proper. 
The  land  in  question  was  in  the  vicinity  of  Waukegan.    At  the  time  of 

1  This  short  statement  is  substituted  for  that  of  the  reporter.  Only  so  much  of  the 
opinion  as  relates  to  the  competency  of  evidence  is  given.  —  Ed. 


SECT.   II.]  DADY  V.  CONDIT.  699 

the  execution  of  the  contract  out  of  which  this  htigation  arises,  and 
for  several  years  thereafter  and  until  the  depression  of  1893,  Wau- 
kegan  and  the  surrounding  district  was  experiencing  a  boom  occa- 
sioned by  rumors  that  the  Washburn  &  Moen  Manufacturing  Com- 
pany, and  other  concerns,  were  about  to  establish  factories  there,  and 
the  above  mentioned  factory,  and  many  others,  were,  in  fact,  so  es- 
tablished, and  as  a  result  the  population  of  Waukegan  was  greatly 
increased,  and  from  the  early  part  of  1891  until  the  panic  of  1893 
there  was  great  activity  in  the  sale  of  real  estate  in  said  district.  As 
a  result  of  these  conditions  the  evidence  clearly  shows  there  was  a 
great  demand  for  land  adjacent  to  and  surrounding  Waukegan  for 
subdivision  and  lot  purposes,  and  the  cash  market  value  of  said  lands 
was  greatly  enhanced  in  price.  The  lands  in  question  here  were  farm 
lands,  and  for  such  use,  it  is  contended,  were  worth  but  about  SoO  or 
$60  per  acre,  but  numerous  witnesses  offered  by  appellee  testified  that 
by  reason  of  the  existence  of  the  conditions  above  mentioned  the 
lands  in  question,  on  August  1,  1891,  had  a  fair  cash  market  value  of 
from  $300  to  SoOO  per  acre.  The  plaintiff  had  a  right  to  show  that  at 
the  time  of  the  breach  of  the  contract  the  lands  had  a  cash  market 
value  for  subdivision  purposes,  and  numerous  witnesses  testified  to 
this  fact.  The  e\adence  of  these  \\itnesses  was  supplemented  by  an 
actual  view  of  the  premises  by  the  jury.  The  testimony  of  numerous 
wdtnesses  for  appellee  was  to  the  effect  that  by  reason  of  the  dcA^elop- 
ments  at  that  time  taking  place  and  expected  to  take  place  in  Wauke- 
gan, there  was  a  greatly  increased  demand  for  all  property  in  that 
vicinity.  This  testimony  was  proper  for  the  purpose  of  showang  the 
cash  market  value  of  the  land  in  question  on  August  1,  1891.  South 
Park  Comrs.  v.  Dunlevy,  91  111.  49. 

Counsel  for  appellant  seem,  however,  to  insist  that  this  testimony 
related  solely  to  speculative  and  prospective  valuation  and  of  an 
imaginative  character,  which  has  never,  in  fact,  materialized,  and 
was  therefore  incompetent.  Appellant  relies  upon  that  class  of  cases 
which  hold  that  in  estimating  the  value  of  lands,  remote,  uncertain, 
imaginary  and  speculative  uses  cannot  be  shown.  We  do  not,  how- 
ever, regard  those  cases  as  in  point  here.  The  rule  established  by  such 
cases  is  well  recognized  and  not  to  be  disturbed,  but  there  is  a  broad 
distinction,  which  appellant's  argument  does  not  seem  to  recognize, 
between  the  value  which  the  expectation  of  changes  or  improvements 
may  give  to  land  and  the  value  which  changes  or  improvements, 
when  actually  made,  may  add  to  land.  The  cases  relied  upon  by  appel- 
lant do  not  hold  that  if  the  expectation  of  changes  or  improvements 
does  actually  affect  the  cash  market  value  of  land  sold  in  the  open 
market,  such  value  is  not  a  proper  basis  for  the  estimation  of 
damages. 

The  theory  on  which  this  case  was  tried  was  that  appellant  was 
under  contract  to  convey  to  appellee  land  on  August  1,  1891;  that 


700  THE  MEDIANA.  ,  [CHAP.  VI. 

he  broke  his  contract  and  wJis  liable  to  appellee  for  the  excess,  if  any, 
above  the  contract  price  which  appellee  could  have  obtained  for  such 
land  in  the  open  market,  when  sold  for  cash,  on  the  day  of  such  breach. 
It  is  conceded  that  the  said  land  on  said  day,  if  used  only  for  farm 
purposes,  was  not  worth  more  than  or  scarcely  half  of  the  contract 
price.  But  appellee,  if  the  lands  were  conveyed  to  him  according  to 
the  contract,  was  under  no  obligation  to  continue  their  use  for  farm 
purposes.  It  was  his  pri^-ilege  to  buy  and  sell  and  derive  a  profit  on  his 
contract,  if  he  could.  The  testimony  offered  was  to  the  effect  that 
appellee,  had  he  been  permitted  to  sell  in  the  open  market,  for  cash, 
could  have,  on  said  August  1,  1891,  derived  a  certain  profit,  thus 
giving  the  jury  a  basis  on  which  to  estimate  his  damages.  It  is  not 
uncommon  for  the  price  which  real  estate  will  bring  in  the  open  market 
to  be  affected,  more  or  less,  by  the  expectation  of  changed  conditions 
in  the  neighborhood  of  the  property,  and  in  this  case,  so  far  as  the  cash 
market  value  of  the  land  was  affected  by  such  expected  change,  the 
appellee  was  entitled  to  show  by  the  evidence  and  have  the  benefit 
thereof.  Cobb  v.  Boston,  112  IVIass.  181;  Moulton  v.  Newburyport 
Water  Co.  137  Mass.  163;  Sanitary  District  v.  Loughran,  160  111. 
362.  ^      . 


THE  MEDIANA. 

House  of  Lords,  1900. 

[Reported  [1900]  A.  C.  11.3.] 

The  Mersey  Docks  and  Harbour  Board,  who  as  owners  of  the  light- 
ship Comet  were  respondents,  are  by  statute  charged  with  the  duty  of 
hghting  the  approaches  to  the  river  Mersey.  There  are  four  stations 
to  be  lighted,  and,  for  the  purpose  of  carrying  out  the  work,  the  Mersey 
Docks  and  Harbour  Board  o^\Tn  six  lightships,  four  of  which  are  always 
in  use,  and  a  fifth  is  kept  to  replace  the  lightships  as  they  are  brought 
in  for  overhaul.  A  sixth  (the  Orion)  lies  moored  in  the  Mersey  ready 
to  take  the  place  of  any  one  of  the  four  lightships  in  case  of  special 
emergency,  such  as  damage  by  collision  or  other  accident.  On  April 
23,  1898,  the  steamship  Mediana,  belonging  to  the  appellants,  came 
into  collision  with,  and  sank,  the  Comet,  one  of  the  lightships.  After 
the  collision  the  Orion  was  towed  out  to  take  the  place  of  the  Comet, 
and  was  so  engaged  for  seventy-four  days,  during  which  period  she 
was  not  required  for  any  other  purpose.  The  appellants  admitted 
liability,  sul)ject  to  a  reference  to  the  Liverpool  District  Registrar  to 
assess  the  damages. 

The   respondents   brought    an    action    in    the    Admiralty    Division 


SECT.  II.]  THE  MEDIANA.  701 

against  the  appellants,  and  filed  a  claim  consisting  of  eight  items,  the 
first  seven  covering  all  the  actual  out  of  pocket  expenses  (for  removing 
and  repairing  the  Comet  and  moving  the  Orion,  &c.)  to  which  the 
respondents  were  put:  these  were  not  disputed.  Item  8  was  as  follows: 
"  Loss  of  the  use  of  the  lightship  Comet,  or  hire  of  the  services  of  the 
lightship  Orion  on  the  station  from  April  23  to  July  6,  1898  —  seventy- 
four  days  at  41.  As.  — 310/.  6^."  The  expense  to  the  board  of  main- 
taining the  sixth  lightship,  including  interest  oh  capital  invested  in 
her,  amounts  to  about  £1000  per  annum.  During  the  last  twenty-five 
years  there  had  been  twenty-three  cases  of  damage  by  collision,  in 
eleven  of  which  it  had  been  necessary  to  replace  the  lightship  by  the 
one  kept  in  readiness  in  the  river,  and  during  the  same  period  there 
had  been  four  cases  in  which  it  had  been  necessary  to  withdraw  one 
of  the  lightships  in  consequence  of  damage  occasioned  by  heavy 
weather,  and  not  by  collision. 

The  appellants  disputed  their  liability  in  respect  of  item  8,  but 
agreed  to  the  sum  of  £310,  6s.  if  the  board  was  entitled  to  anything 
under  that  head. 

The  registrar  allowed  all  the  items.  Pliillimore,  J. ,  disallowed  item 
8.  The  Court  of  Appeal  (A.  L.  Smith  and  Collins,  L.JJ.)  reversed  this 
decision  and  confirmed  the  registrar's  report.    [1899]  P.  127. 

Earl  of  Halsbury  L.  C.  My  Lords,  I  think  that  this  case  is  really 
governed  by  the  principles  laid  down  in  this  House  in  the  case  of  The 
Greta  Holme,  [1897]  A.  C.  596,  and  I  therefore  agree  wath  the  Court  of 
Appeal  and  move  your  Lordships  that  this  judgment  be  affirmed. 

My  Lords,  it  is  true  that  in  that  case  there  were 'two  circumstances 
which  I  mention  for  the  purpose  of  pointing  out  that  I  do  not  omit  to 
consider  them,  namely,  that  the  dredger  was  actually  prevented  from 
doing  work  which  the  particular  corporation  entrusted  with  the  duty 
of  doing  it  had  intended  it  to  do;  and  further,  as  wqs  pointed  out  by 
Lord  Watson,  the  effect  of  not  dredging  during  the  period  while  the 
dredger  was  rendered  incapable  of  doing  its  proper  work  was  to  set  up 
an  additional  amount  of  silt  which  would  itself  of  course  be  an  injury 
which  would  properly  sound  in  damages  when  the  person  responsible 
for  taking  away  the  dredger  was  called  upon  to  pay.  These  two  cir- 
cumstances were  not  unnaturally  pointed  out  liy  the  learned  counsel 
who  challenged  this  judgment  as  shewing  that  there  were  grounds  for 
the  decision  in  that  case  which  do  not  apply  here.  But,  my  Lords, 
I  think  it  is  impossible  to  read  the  judgments  of  those  noble  and  learned 
Lords  who  took  part  in  that  case  without  seeing  that  it  rests  upon  a 
much  -wider  and  broader  principle  than  would  be  applicable  to  the 
particular  circumstances  which  I  have  referred  to  in  that  case.  Lord 
Herschell  in  terms  did  lay  down  a  much  broader  principle,  and  I  may 
say  that  I  myself  intended  to  lay  it  down,  though  I  may  have  expressed 
myself  imperfectly,  namely,  that  where  by  the  wrongful  act  of  one  man 
something  belonging  to  another  is  either  itself  so  injured  as  not  to  be 


702  THE  MEDIANA.  [CHAP.  VI. 

capable  of  being  used  or  is  taken  away  so  that  it  cannot  be  used  at 
all,  that  of  itself  is  a  ground  for  damages. 

And,  my  Lords,  here  I  wish,  with  reference  to  what  has  been  sug- 
gested at  the  bar,  to  remark  upon  the  difference  between  damages  and 
nominal  damages.  "Nominal  damages"  is  a  technical  phrase  which 
means  that  you  have  negati\ed  anything  like  real  damage,  but  that 
you  are  affirming  by  your  nominal  damages  that  there  is  an  infraction 
of  a  legal  right  which,  though  it  gives  you  no  right  to  any  real  damages 
at  all,  yet  gives  you  a  right  to  the  verdict  or  judgment  because  your 
legal  right  has  been  infringed.  But  the  term  "nominal  damages"  does 
not  mean  small  damages.  The  extent  to  which  a  person  has  a  right 
to  recover  what  is  called  by  the  compendious  phrase  damages,  but 
may  be  also  represented  as  compensation  for  the  use  of  something 
that  belongs  to  him,  depends  upon  a  variety  of  circumstances,  and  it 
certainly  does  not  in  the  smallest  degree  suggest  that  because  they  are 
small  they  are  necessarily  nominal  damages.  Of  course  the  whole 
region  of  inquiry  into  damages  is  one  of  extreme  difficulty.  You  very 
often  cannot  even  lay  dowTi  any  principle  upon  which  you  can  give 
damages;  nevertheless  it  is  remitted  to  the  jury,  or  those  who  stand 
in  place  of  the  jury,  to  consider  what  compensation  in  money  shall  be 
given  for  what  is  a  A\Tongful  act.  Take  the  most  familiar  and  ordinary 
case:  how  is  anybody  to  measure  pain  and  suffering  in  moneys  counted? 
Nobody  can  suggest  that  you  can  by  any  arithmetical  calculation 
establish  what  is  the  exact  amount  of  money  which  would  represent 
such  a  thing  as  the  pain  and  suffering  which  a  person  has  undergone 
by  reason  of  an  accident.  In  truth,  I  think  it  would  be  very  arguable 
to  say  that  a  person  would  be  entitled  to  no  damages  for  such  things. 
What  manly  mind  cares  about  pain  and  suffering  that  is  past?  But 
nevertheless  the  law  recognises  that  as  a  topic  upon  which  damages 
may  be  given. 

Now,  in  the  particular  case  before  us,  apart  from  a  circumstance 
which  I  AA-ill  refer  to  immediately,  the  broad  proposition  seems  to  me 
to  be  that  by  a  wrongful  act  of  the  defendants  the  plaintiffs  were  de- 
prived of  their  vessel.  When  I  say  deprived  of  their  vessel,  I  will  not 
use  the  phrase  "  the  use  of  the  vessel."  What  right  has  a  wrongdoer  to 
consider  what  use  you  are  going  to  make  of  your  vessel?  More  than 
one  case  has  been  put  to  illustrate  this:  for  example,  the  oA\Tier  of  a 
horse,  or  of  a  chair.  Supposing  a  person  took  away  a  chair  out  of  my 
room  and  kept  it  for  twelve  months,  could  anybody  say  you  had  a 
right  to  diminish  the  damages  by  shewing  that  I  did  not  usually  sit  in 
that  chair,  or  that  there  w^ere  plenty  of  other  chairs  in  the  room? 
The  proposition  so  nakedly  stated  appears  to  me  to  be  absurd;  but  a 
jur\-  ha\-e  very  often  a  very  difficult  task  to  perform  in  ascertaining 
what  should  be  the  amount  of  damages  of  that  sort.  I  know  very  well 
that  as  a  matter  of  common  sense  w^hat  an  arbitrator  or  a  jury  very 
often  do  is  to  take  a  perfectly  artificial  hypothesis  and  say,  "Well,  if 


SECT.   II.]  THE  MEDIANA.  70.3 

you  wanted  to  hire  a  chair,  what  would  you  have  to  give  for  it  for  the 
period";  and  in  that  way  they  come  to  a  rough  sort  of  conclusion  as 
to  what  damages  ought  to  be  paid  for  the  unjust  and  unlawful  with- 
drawal of  it  from  the  owner.  Here,  as  I  say,  the  broad  principle  seems 
to  me  to  be  quite  independent  of  the  particular  use  the  plaintiffs  were 
going  to  make  of  the  thing  that  was  taken,  except  —  and  this  I  think 
has  been  the  fallacy  running  through  the  arguments  at  the  bar  — 
when  you  are  endeavouring  to  establish  the  specific  loss  of  profit,  or  of 
sometliing  that  you  otherwise  would  have  got  which  the  law  recognises 
as  special  damage.  In  that  case  you  must  shew  it,  and  by  precise  evi- 
dence, so  much  so  that  in  the  old  system  of  pleading  you  could  not 
recover  damages  unless  you  had  made  a  specific  allegation  in  your 
pleading  so  as  to  give  the  persons  responsible  for  making  good  the  loss 
an  opportunity  of  inquiring  into  it  before  they  came  into  court.  But 
when  we  are  speaking  of  general  damages  no  such  principle  applies  at 
all,  and  the  jury  might  give  whatever  they  thought  would  be  the  proper 
equivalent  for  the  unlawful  withdi'awal  of  the  subject-matter  then  in 
question.  It  seems  to  me  that  that  broad  principle  comprehends'  within 
it  many  other  things.  There  is  no  doubt  in  many  cases  a  jury  would 
say  there  really  has  been  no  damage  at  all:  "We  will  give  the  plain- 
tiffs a  trifling  amount"  —  not  nominal  damages,  be  it  observed,  but 
a  trifling  amount;  in  other  cases  it  would  be  n^ore  serious. 

It  appears  to  me,  therefore,  that  what  the  noble  and  learned  Lords 
who  gave  judgment  in  your  Lordships'  House  intended  to  point  out, 
and  what  Lord  Herschell  gives  expression  to  in  plain  terms,  was  that 
the  unlawful  keeping  back  of  what  belongs  to  another  person  is  of  itself 
a  ground  for  real  damages,  not  nominal  damages  at  all.  Of  course  I 
observe  that  it  has  been  suggested  that  this  was  not  an  action  for 
trover  or  detinue;  but  although  those  are  different  forms  of  action, 
the  principle  upon  which  damages  are  to  be  assessed  does  not  depend 
upon  the  form  of  action  at  all.  I  put  aside  cases  of  trespass  where  a 
high-handed  procedure  or  insolent  behaviour  has  been  held  in  law  to 
be  a  subject  of  aggravated  damages,  and  the  jury  might  give  what  are 
called  pimitive  damages.  Leaving  that  aside,  whatever  be  the  form 
of  action,  the  principle  of  assessing  damages  must  be  the  same  in  all 
Courts  and  for  all  forms  of  what  I  may  call  the  unlawful  detention  of 
another  man's  property. 

My  Lords,  that  seems  to  me  to  be  so  plain  that  I  confess  I  have 
been  somewhat  puzzled  to  learn  that  it  has  been  decided  in  the  Ad- 
miralty Courts  that  the  loss  of  the  use  of  a  vessel  under  the  circum- 
stances of  this  case  has  been  treated  (if  it  has  really  been  so  treated ;  I 
have  serious  doubt  about  it)  as  something  for  which  no  moneys  counted 
could  possibly  be  allowed.  I  can  only  say  that  I  am  very  glad  such  a 
principle  has  not  been  affirmed  by  your  Lordships'  House,  because  it 
seems  to  me  to  be  inconsistent  with  principle  and  very  unreasonable  in 
itself. 


704  THE  MEDIANA.  [CHAP.  VI. 

My  Lords,  the  only  difficulty  I  have  had  in  this  case  has  been  in 
regard  to  the  case  in  the  Privy  Council  (The  City  of  Peking.  15  App. 
Cas.  438).  I  think,  with  some  labour,  I  have  discovered  the  clue 
which  guided  the  learned  judges  in  coming  to  the  conclusion  that 
they  did.  It  is  to  be  observed  in  the  first  place  that  there  is  a  difficulty 
in  understanding  that  case  without  the  reports  of  those  persons  who 
had  to  assess  the  damages  —  it  was  the  registrar,  not  a  jury ;  and  the 
report  certainly  is  not  a  model  of  clearness  so  far  as  it  is  quoted.  It  is 
very  difficult,  indeed,  to  understand  the  judgment  without  having  the 
report  before  one,  but  I  think  I  have  discovered  the  clue  to  the  judg- 
ment which  was  arrived  at.  At  page  447  of  the  report  I  find  this  as 
part  of  the  judgment:  "It  would  be  very  unjust  to  charge  the  defend- 
ant £95  a  day  or  anything  for  the  loss  of  the  use  of  the  Saghahen  during 
her  detention  at  Hong  Kong  for  the  time  during  which  the  Melbourne 
and  her  crew  Avere  doing"  (this  is  I  think  the  clue  to  the  whole  story) 
"at  the  defendants'  expense  the  work  which  the  Saghalien  and  her 
crew  ought  to  have  done."  I  have  not  been  able  sufficiently  to  dis- 
entangle the  facts  to  say  whether  that  included  anything  for  the  use 
of  the  vessel  or  not;  but  the  principle  upon  which  they  decided  it  was 
that  the  defendants  were  themselves  chargeable  and  paid  for  the  use 
of  the  Melboiu'ne  in  place  of  the  other  vessel  ■ —  that  it  belonged  as  a 
matter  of  fact  to  the  plaintiffs  is  immaterial.  The  principle  of  the  deci- 
sion, as  I  gather  it  from  that  passage,  is  that  the  defendants  had  already 
paid  for  tlie  use  of  it  and  for  the  use  of  the  crew  and  for  the  navigation 
of  it,  and  therefore  if  during  that  period  when  the  defendants  were 
actually  called  upon  by  the  registi^ar's  report  to  pay  for  the  use  of  the 
IVIelbourne  they  had  had  to  pay  £95  a  day  also  for  the  detention  of  the 
Saghalien,  it  is  very  obAaous  that  they  would  have  been  paying  twice 
over,  and  therefore  not  unnaturally,  I  think,  the  Court  came  to  the 
conclusion  in  that  case,  not  as  a  principle  of  law  at  all  but  as  applicable 
to  the  particular  facts  of  that  case,  that,  to  put  in  plain  terms  what  I 
understand  to  be  the  effect  of  the  judgment,  you  cannot  have  damages 
for  that  detention  because  you  have  already  got  paid  for  the  use  of  the 
substituted  vessel  in  the  form  of  the  damages  that  the  registrar  has 
assessed.  If  that  is  the  principle  of  the  case,  of  course  it  is  not  incon- 
sistent with,  but,  on  the  contrary,  on  the  same  lines  wath  the  judg- 
ment which  the  Court  of  Appeal  has  given  in  the  present  case.  Whether 
the  question  was  raised  or  not  of  the  absolute  use  of  the  vessel  as  dis- 
tinguished from  the  payment  of  the  crew  and  all  the  other  things  that 
were  included  in  the  lump  sum  in  the  registrar's  report,  I  am  not  able 
to  say.  Happily  we  have  present  to-day  one  of  the  noble  and  learned 
Lords  who  took  part  in  that  judgment,  and  he  will  probably  be  able 
to  tell  your  Lordships  whether  that  question  was  raised  or  not.  Un- 
doubtedly it  is  not  raised  in  the  report  at  all,  but,  as  I  say,  the  clue 
to  the  judgment  is  what  I  have  already  pointed  out,  and  therefore,  to 
my  mind,,  that  decision  presents  no  difficulty  at  all  in  arriving  at  the 


SECT.  II.]  GLASPY  I'.  CABOT.  705 

conclusion  I  have  indicated,  namely,  that  this  judgment  ought  to  be 
affirmed;  and  I  therefore  move  vour  Lordships  that  this  appeal  be 
dismissed  with  costs. 

Lords  Macnaghten,  Morris,  Shand,  James  of  Hereford  and 
Brampton  delivered  concurring  opinions. 

Judgment  appealed  from  affirmed  and  appeal  dismissed  with  costs. 


GLASPY  V.  CABOT. 
Supreme  Judicial  Court  of  Massachusetts,  1883. 

[Reported  135  Mass.  435.] 

Action  for  conversion  of  a  schooner  while  she  lay  on  "Coffin's 
Beach"  inside  Annisquam  Harbor.'^ 

Field,  J.  .  .  .  The  remaining  question  is  the  measure  of  damages 
in  the  action  against  Power  and  Murphy.  These  defendants  con- 
verted the  schooner  as  she  lay  on  Coffin's  Beach  in  Annisquam  Harbor. 
If  there  was  no  market  for  such  a  vessel  at  Annisquam,  it  was  her  a  alue 
as  she  lay  there  that  the  defendants  are  liable  to  pay.  But  in  deter- 
mining her  value  there  by  her  value  elsewhere,  a  reasonable  allowance 
must  be  made  "for  the  probable  cost  of  getting  her  off,  repairing  her, 
and  getting  her"  to  market,  "less  also  a  reasonable  alloM^ance  for 
diminution  in  her  market  value  on  account  of  having  been  ashore." 
These  allowances  were  made.  The  risks  and  chances  of  getting  her 
afloat  and  getting  her  to  market  must  also  be  taken  into  account.  If 
there  was  no  market  at  Annisquam,  the  learned  justice  had  a  right 
to  consider,  in  assessing  damages,  the  market  value  in  St.  John,  if 
that  was  the  principal  market,  or  one  of  the  principal  markets,  in  which 
such  vessels  are  bought  and  sold,  and  it  was  practicable  to  attempt 
to  carry  her  there.  He  had  a  right  also  to  consider  other  markets; 
the  test  is  what  buyers  of  vessels,  from  St.  John,  Boston,  or  other 
ports,  would  pay  for  her  as  she  lay  on  Coffin's  Beach,  if  all  the  facts 
of  her  condition  were  kno^ni.  If  there  were  no  direct  satisfactory  evi- 
dence of  this,  and  the  court  was  satisfied  that  St.  John  was  the  best 
market,  and  that  it  was  practicable  to  attempt  to  take  her  there,  her 
market  value  when  taken  to  St.  John  could  be  considered ;  but,  in  addi- 
tion to  the  allowances  made  from  her  market  \alue  in  St.  John,  there 
should  have  been  an  allowance  for  the  fair  value  of  the  risks  of  getting 
her  there.  If  she  were  properly  repaired  for  the  voyage,  the  usual  rate 
of  insurance  for  such  a  vessel  on  such  a  voyage  would  be  evidence  of 
the  value  of  the  risk  of  taking  her  from  the  port  of  repair  to  St.  John. 
Perhaps  a  fair  salvage  for  getting  her  off  and  bringing  her  to  a  port 
of  repair,  when  the  salvors  would  be  ehtitled  to  nothing  except  out  of 

1  This  short  statement  is  substituted  for  that  of  the  reporter.  —  Ed. 


706  FIVE  TRACTS  OF  LAND  V.  UNITED  STATES.  [CHAP.  VI. 

the  property  saved,  would  be  evidence  of  the  amount  of  the  allowance 
to  be  made  for  the  risk  and  cost  of  removing  her  to  such  a  port.  We 
think  the  rule  of  damages  adopted  was  too  liberal  under  the  circum- 
stances stated  in  the  exceptions,  and  that  there  must  be  a  new  trial  in 
the  second  action,  upon  the  amount  of  damages  only.  Bourne  v. 
Ashley,  1  Lowell,  27.  Saunders  v.  Clark,  106  Mass.  331.  Coolidge 
V.  Choate,  11  Met.  79. 

Ordered  accordingly. 


FIVE  TRACTS  OF  LAND  v.   UNITED  STATES. 
Circuit  Court  of  Appeals,  1900. 

[Reported   101  Fed.  Rep.  661.] 

Gray,  Circ.  J.  The  United  States  presented  its  petition  to  the 
judges  of  the  circuit  court  of  the  United  States  for  the  Eastern  dis- 
trict of  ^Pennsylvania,  setting  out  the  act  of  congress  of  August  1, 
1888,  entitled  "An  act  to  authorize  condemnation  of  land  for  sites 
of  public  buildings  and  other  purposes,"  the  act  of  general  assembly 
of  the  state  of  Pennsylvania  approved  June  8,  1874,  entitled  "An 
act  providing  a  mode  by  which  the  title  to  all  estates  and  interests 
in  land  in  the  state  of  Pennsylvania  may  be  vested  in  the  United  States 
when  no  agreement  can  be  made  with  the  owTiers  of  the  same  for  the 
purchase  thereof,"  and  the  act  of  congress  approved  February  11,  1895, 
entitled  "An  act  to  establish  a  national  military  park  at  Gettysburg, 
Pennsylvania,"  and  describing  five  certain  tracts  of  land  in  Cumber- 
land township,  Adams  county.  Pa.,  the  title  to  which  it  was  neces- 
sary that  the  LTnited  States  acquire,  in  order  to  carry  out  the  purpose 
of  said  last-mentioned  act  of  congress;  that  the  five  tracts  of  land  are 
contained  in  map  prepared  by  Maj.  Gen.  Daniel  E.  Sickles,  United 
States  army,  of  the  battlefield  of  Gettysburg,  and  were  occupied  by 
the  infantry,  cavalry,  and  artillery  on  the  1st,  2d,  and  3d  days  of  July, 
A.  D.  1863,  and  praying  for  the  appointment  of  a  jury  to  view,  esti- 
mate, and  determine  the  value  of  the  said  lands.  .  .  . 

The  court,  in  its  charge  to  the  jury,  said : 

"Upon  these  subjects,  however,  while  they  will  not,  perhaps,  be 
free  from  difficulty,  you  will,  I  assume,  have  less  difficulty  than  upon 
the  remaining  element  of  value  which  is  insisted  upon,  namely,  that 
which  has  been  spoken  of  as  'historic  value.'  There  is  no  doubt 
that  historic  association  may  enter  into  the  market  value  of  the  land, 
but  you  are  not  to  give,  as  separate  items  —  First,  market  value; 
and,  second,  historic  value.  If  you  did  that,  you  would  depart  from 
what  I  have  said  to  you  the  law  has  established  as  the  measure  of 
just  compensation,  which  is  market  value.  But,  as  I  said  to  counsel 
during  the  course  of  the  cause,  if  a  piece  of  land  has  in  the  market  a 


SECT.  II.]  BRADLEY  V.   HOOKER.  707 

value  because  there  are  trees  upon  it,  a  value  because  there  are  stones 
upon  it,  a  value  because  it  may  be  used  to  raise  cereals,  a  value  for 
any  other  physical  peculiarity  of  the  property,  if  it  also  has  in  the  market 
a  value  based  upon  its  historical  associations,  that  as  much  enters  into 
market  value  as  would  a  mine  opened  upon  the  property,  or  a  well  dug 
upon  it.  It  is  a  part  of  the  different  matters  that  go  to  contribute 
to  the  sum  total  of  market  value.  Just  in  that  way  you  are  entitled 
to  consider  historic  value,  if  you  believe  from  the  evidence  that  market 
value  is  at  all  enhanced  by  historical  value.  .  .  .  Nor,  keeping  your 
minds  always  to  market  value,  are  you  to  consider  the  valuation 
with  reference  to  the  necessities  of  the  government  of  the  United 
States  to  take  the  property,  or  the  particular  purposes  to  which  the 
United  States  government  proposes  to  put  it.  .  .  .  You  are  getting 
at  the  market  value.  Therefore  observe,  not  what  the  United  States 
might  be  willing  to  pay  in  order  to  carry  out  the  purpose  which  it 
has  in  view,  —  that  is  not  the  question,  —  but  what  in  the  market 
would  any  purchaser  desiring  to  buy  this  property  be  willing  to  give 
for  it,  considering  all  the  elements  that  have  been  stated,  in  order 
to  acquire  it  from  a  seller  willing  to  sell." 

In  the  passages  quoted,  we  think  the  learned  judge  in  the  court 
below  has  clearly  and  correctly  stated  the  rules  of  law  which  should 
govern  a  jury  in  the  ascertainment  of  the  value  of  the  land  proposed 
to  be  taken  by  the  United  States,  and  the  damages  resulting  there- 
from. .  .  . 

The  judgment  in  this  case  is  hereby  affirmed. 


BRADLEY   v.   HOOKER. 
Supreme  Judicial  Court  of  Massachusetts,  1900. 

[Reported  175  Mass.  142.] 

Tort,  for  the  conversion  of  one  mahogany-frame  lounge,  covered 
with  plush,  old  gold  in  color. 

At  the  trial  in  the  Superior  Court,  before  Bond,  J.,  there  was  evi- 
dence tending  to  prove  a  conversion  on  or  about  July  2,  1897,  and 
for  the  purpose  of  proving  the  damage  which  the  plaintiff  suffered 
therefrom,  she  called  as  a  witness  one  Eunice  M.  Fleury,  who,  ha\ang 
been  asked  certain  questions  for  the  purpose  of  showing  her  qualifica- 
tions to  testify  as  an  expert  on  the  value  of  the  lounge,  was  asked  by 
the  plaintiff,  "What  would  be  the  fair  market  value  of  that  sofa  in 
July,  1897?"  to  which  question  the  witness  answered:  "To  anybody 
that  liked  antique  furniture  it  was  worth  fifty  dollars,  but  if  it  Avas 
sold  at  auction,  or  to  a  person  who  did  n't  care  for  antique  furniture, 
it  would  be  probably  from  fifteen  dollars  to  twenty  dollars."  The 
defendants  objected  to  the  answer,  and  asked  that  it  be  stricken  out; 


708  LOUISVILLE  &   NASHVILLE  R.   R.   CO.  I'.   STEWART.        [cHAP.   VI. 

but  the  judge  overruled  the  objection.  The  defendants  then  objected 
to  that  part  of  the  answer  which  stated  that  "  To  anybody  who  liked 
antique  furniture  it  was  worth  fifty  dollars,"  and  asked  that  that 
part  might  be  stricken  out;  but  the  judge  overruled  the  objection,  and 
the  defendants  excepted. 

There  was  no  evidence  from  which  it  could  be  inferred  that  the 
terms  "second  hand  furniture"  and  "antique  furniture"  are  synony- 
mous with  or  in  any  way  descriptive  of  the  same  kind  of  furniture,  or 
that  such  terms  were  used  in  that  sense  by  Fleury;  but  there  was  evi- 
dence fully  describing  the  construction  and  age  of  the  lounge. 

The  only  other  testimony  as  to  the  value  of  the  lounge  was  that  of 
the  plaintift',  who  testified  that  it  was  worth  between  fifteen  and 
twenty  dollars. 

The  jury  returned  a  verdict  for  the  plaintiff;  and  the  defendants 
alleged  exceptions. 

Holmes,  C  J.  The  question  called  for  the  market  value  of  the 
converted  object,  and  the  answer  was  an  attempt  to  give  it.  The 
market  value  is  at  least  the  highest  price  that  a  normal  purchaser  not 
under  peculiar  compulsion  will  pay  at  the  time  and  place  in  question 
in  order  to  get  the  thing.  See  National  Bank  of  Commerce  v.  New 
Bedford,  155  Mass.  313,  315.  In  the  stock  exchange  buyers  and 
sellers  are  brought  together  in  a  focus,  with  the  result  that  there  is  no 
danger  of  missing  the  highest  price  by  the  accident  of  missing  the 
man  who  would  give  it.  Even  if  at  a  given  moment  there  is  no  buyer 
of  the  class  that  would  most  desire  a  certain  stock  or  bond,  there  is  an 
organized  public  ready  to  buy  upon  the  anticipation  that  such  a  buyer 
will  be  found,  and  regulating  the  price  which  it  will  pay,  more  or  less 
by  that  anticipation.  There  is  no  such  focus  for  old  furniture.  The 
answer  very  properly  recognized  the  uncertainty  of  encountering  a 
purchaser  who  would  give  the  reasonably  possible  highest  price,  and 
named  an  alternative  sum.  In  a  case  like  this  market  value  is  a  cri- 
terion which  oscillates  Mdthin  limits,  because,  in  the  absence  of  a 
balance  wheel  like  the  stock  exchange,  it  cannot  be  assumed  with  re- 
gard to  a  single  object  and  a  single  sale  that  the  element  of  accident  is 
eHminated,  and  that  the  most  favorable  purchaser  will  be  encountered. 

Exceptions  overruled. 


I 


LOUISVILLE  AND  NASITV^LLE  RAILROAD  CO.  v.  STEWART. 

Supreme  Court  of  Mississippi,  1900. 

[Reported  78  Miss.  600.] 

Mrs.  Stewart,  the  appellee,  was  the  plaintiff,  and  the  railroad  com- 
pany was  defendant  in  the  court  below.  The  plaintiff  shipped  a  car 
load  of  furniture  and  household  effects,  including  several  oil  portraits. 


SECT.  II.]        BARKER  V.   LEWIS  STORAGE   &  TRANSFER  CO.  709 

from  Bay  St.  Louis,  Mississippi,  to  New  Orleans,  Louisiana.  The 
furniture  was  badly  damaged  and  the  portraits  destroyed  when  it 
reached  New  Orleans,  and  the  plaintiff  sued  to  recover  damages 
because  thereof.  On  the  trial  she  made  out  her  case  except  as  to  the 
portraits.  The  state  of  the  evidence  touching  their  value  is  stated  in 
the  opinion  of  the  court.  Plaintiff  recovered  a  judgment  for  a  sum 
so  large  that  it  necessarily  embraced  a  considerable  sum  for  the 
portraits,  and  the  defendant  appealed  to  the  supreme  court. 

Whitfield,  C.  J.  The  court  excluded  the  hearsay  testimony  of 
Mrs.  Stewart  as  to  the  value  of  the  oil  portraits,  and  there  was  no 
evidence  before  the  jury  as  to  cost.  Nor  was  there  any  as  to  what  it 
would  cost  to  replace  or  restore  them;  nor  any  of  any  kind  except  that 
she  was  allowed  to  answer  as  to  what  they  were  worth  to  her  from  the 
associations  connected  with  them,  they  being  family  portraits,  their 
'     purely  sentimental  value  in  other  words.     This  is  not  competent. 

The  true  rule  in  such  cases  is  not  to  inquire  as  to  market  value, 
since  such  articles  have  no  market  value,  but  to  show  the  "actual 
value  to  him  who  ovvms  the  portraits,  taking  into  account  the  cost, 
the  practicability  and  expense  of  replacing  them,  and  such  other 
considerations  as  in  the  particular  case  affect  their  value  to  the  o\\Tier." 
Green  v.  R.  R.,  128  Mass.  22L  International  R.  R.  Co.  v.  Nicholson, 
61  Tex.  550.     Hutchinson  on  Carriers,  §  7706. 

It  was  error  not  to  have  sustained  the  objection  made  to  this  testi- 
nion3\  But  the  evidence  would  abundantly  sustain  a  verdict  for 
$538  (damages  to  the  other  articles),  and  if  appellant  will  remit  down 
to  that  sum,  the  judgment  will  be  affirmed,  since  on  the  facts  of  tliis 
record  there  is  no  merit  in  any  other  contention. 

So  ordered. 


BARKER  V.   LEWIS  STORAGE  AND   TRANSFER  CO. 
Supreme  Court  of  Errors,  Connecticut,  1905. 

[Reported  78  Co?in.  199.] 

Prentice,  .T.  The  plaintiffs  delivered  to  the  defendant  as  a  ware- 
houseman for  storage  certain  household  furniture  and  personal  effects. 
This  action  was  brought  to  recover  damages  for  their  conversion. 
Judgment  having  been  rendered  for  the  plaintiffs  upon  the  verdict  of 
a  jury,  the  defendant  appealed,  assigning  various  reasons  of  appeal 
which,  after  elimination  and  consolidation,  are  in  its  brief  reduced  to 
four  claims  of  error.  The  most  comprehensive  and  important  of  these 
involves  a  consideration  of  the  rule  for  the  assessment  of  damages. 

The  property  in  question  included,  as  was  claimed,  certain  family 
records,  pictures,  photographs,  heirlooms  and  other  articles  of  peculiar 
value  to  the  plaintiffs.     With  respect  to  these  articles  the  court  gave 


710  BARKER  V.  LEWIS  STORAGE  &  TRANSFER  CO.      [CHAP.  VI. 

instructions  in  the  language  of  Green  v.  Boston  &  L.  R.  Co.,  128  Mass. 
221,  of  which  no  complaint  is  made. 

The  remaining  property  was  household  furniture  and  effects,  in- 
cluding books,  all  claimed  to  have  been  purchased  by  or  presented  to 
the  plaintiffs  when  new  for  use  by  them  in  housekeeping,  and  in  fact 
so  used  by  them  in  their  home  in  New  Haven  until  the  time  that  they 
were  stored  with  the  defendant  upon  the  occasion  of  their  having 
temporarily  broken  up  housekeeping  to  go  into  the  country. 

The  defendant  claimed  that  the  measure  of  the  plaintiffs'  recovery 
for  these  articles  was  their  fair  market  value  at  the  time  and  place  of 
conversion,  with  lawful  interest  since  that  date.  It  asked  the  court 
to  so  charge,  and  sought  by  the  introduction  of  evidence  to  show  that 
there  was  a  second-hand  market  for  such  things  in  New  Haven,  and 
presumably,  although  no  definite  offer  was  made,  to  follow  up  that  line 
of  inquiry  by  offering  evidence  of  some  sort  claimed  to  show  the  value 
of  articles  of  the  kind  in  question  in  such  market. 

The  court  was  correct  in  refusing  to  instruct  the  jury  as  requested, 
and  in  excluding  said  testimony.  The  cardinal  rule  is  that  a  person 
injured  shall  receive  fair  compensation  for  his  loss  or  injury  and  no 
more.  Baldwin  v.  Porter,  12  Conn.  473.  Commonly  in  cases  of  con- 
version the  loss  is  the  value  of  the  property.  Baldwin  v.  Porter,  supra. 
Commonly  the  value  of  the  property  as  representing  the  owner's  loss 
is  its  market  value,  if  it  have  one,  since  thereby  is  indicated  the  cost 
of  replacing.  Hence  the  subordinate  rule  of  general  application  ap- 
pealed to  by  the  defendant.  But  the  principal  rule,  which  seeks  to 
give  fair  compensation  for  the  loss,  is  the  paramount  one,  and  ordi- 
narily when  the  subordinate  one  fails  to  accomplish  the  desired  result 
it  yields  to  an  exception  or  modification.  1  Suth.  on  Dam.  (3d  ed.), 
§  12.  It  is  now  generally  recognized  that  wearing  apparel  in  use,  and 
household  goods  and  effects  owned  and  kept  for  personal  use,  are 
articles  which  cannot  in  any  fair  sense  be  said  to  be  marketable,  and 
have  a  market  ^•alue,  or  at  least  a  market  value  which  is  fairly  indica- 
tive of  their  real  value  to  their  owTier  and  of  his  loss  by  being  deprived 
of  them.  So  it  has  been  frequently,  and  we  think  correctly,  held  that 
the  amount  of  his  recovery  in  the  event  of  conversion  ought  not  to  be 
restricted  to  the  price  which  could  be  realized  by  a  sale  in  the  market, 
but  he  should  be  allowed  to  recover  the  value  to  him  based  on  his  actual 
money  loss,  all  the  circumstances  and  conditions  considered,  resulting 
from  his  being  deprived  of  the  property,  not  including,  however,  any 
sentimental  or  fanciful  value  he  may  for  any  reason  place  upon  it. 
Denver,  S.  P.  &  P.  R.  Co.  v.  Frame,  6  Colo.  382,  385;  McMahon  v. 
Dubuque,  107  la.  62;  International  &  G.  N.  Ry.  Co.  v.  Nicholson,  61 
Tex.  550,  553;  Fairfax  v.  New  York  C.  &  H.  R.  R.  Co.,  73  N.  Y.  167; 
Sell  V.  Ward,  81  111.  App.  675;  2  Joyce  on  Dam.,  §  1037;  4  Suth.  on 
Dam.;  §  1117;  1  Sedg.  on  Dam.  (8th  ed.),  §  251.  -' 


SECT.  III.]  GRIFFIN  V.  COLVER.  711 

SECTION   III. 

Certainty. 

GRIFFIN  V.  COLVER. 
Court  of  Appeals,  New  York,  1858. 

[Reported  16  iV.  F.  489.] 

Appeal  from  the  Supreme  Court.  The  cause  was  tried  before  a 
referee.  The  plaintiff  agreed  to  build  a  steam  engine,  A\atli  boilers,  &c., 
for  the  defendants,  and  to  deliver  it  to  them  on  a  day  certain.  He 
failed  to  do  so,  and  a  delay  of  one  week  occurred,  during  which  time 
the  defendants  lost  the  use  of  certain  machinery  for  the  sawing  and 
planing  of  lumber,  which  the  steam  engine  was  intended  to  drive, 
and  which  the  plaintiff  knew  it  was  intended  to  drive.  The  plaintiff 
having  brought  his  action  for  the  price  of  the  engine,  the  defendants 
recouped  their  damages  from  the  failure  to  deliver  it  at  the  time  fLxed 
by  the  contract.  They  gave  evidence  that  the  net  average  value  of 
the  use  of  the  engine  at  the  place  where  it  was  located,  for  the  pur- 
pose for  which  it  was  intended,  and  in  connection  with  the  defendants' 
machinery,  was  S50  per  day  above  the  wear  and  tear  and  the  expense 
of  running  it.  This  estimate  was  arrived  at  by  a  calculation  from  the 
quantity  of  lumber  the  machines  driven  by  the  engine  would  cut  and 
plane  in  a  day,  the  prices  received  by  the  defendants  for  planing,  and 
the  expenses  of  running  and  the  wear  and  tear.  The  referee  held  that 
this  did  not  present  the  proper  measure  of  damages,  but  he  allowed 
the  defendants  $50  "as  a  proper  compensation  upon  their  investment 
or  the  value  of  the  property  which  was  partially  unoccupied  by  reason 
of  the  plaintiff's  default."  The  defendants  excepted  to  his  report  on 
this  ground.  The  judgment  entered  upon  the  report  was,  on  appeal, 
affirmed  by  the  Supreme  Court,  at  general  term  in  the  fifth  district, 
and  the  defendants  appealed  to  this  court. 

Selden,  J.  The  only  point  made  by  the  appellants  is,  that  in 
estimating  their  damages  on  account  of  the  plaintiff's  failure  to  furnish 
the  engine  by  the  time  specified  in  the  contract,  they  should  have  been 
allowed  what  the  proof  showed  they  might  have  earned  by  the  use  of 
such  engine,  together  with  their  other  machinery,  during  the  time  lost 
by  the  delay.  This  claim  was  objected  to,  and  rejected  upon  the  trial 
as  coming  within  the  rule  which  precludes  the  allowance  of  profits,  by 
way  of  damages,  for  the  breach  of  an  executory  contract. 

To  determine  whether  this  rule  was  correctly  applied  by  the  referee, 
it  is  necessary  to  recur  to  the  reason  upon  which  it  is  founded.  It  is 
not  a  primary  rule,  but  is  a  mere  deduction  from  that  more  general  and 
fundamental  rule  which  requires  that  the  damages  claimed  should  in 


712  GRIFFIN  V.  COLVER.  [ciL\P.  VI. 

all  cases  be  shown,  by  clear  and  satisfactory  evidence,  to  haye  been 
actually  sustained.  It  is  a  well-established  rule«of  the  common  law 
that  the  damages  to  be  recovered  for  a  breach  of  contract  must  be 
shown  with  certainty,  and  not  left  to  speculation  or  conjecture;  and  it 
is  under  this  rule  that  profits  are  excluded  from  the  estimate  of  damages 
in  such  cases,  and  not  because  there  is  anything  in  their  nature  which 
should  per  sr  prevent  their  allowance.  Profits  which  would  certainly 
have  been  realized  but  for  the  defendant's  default  are  recoverable^ 
those  which  are  speculative  or  contingent  are  not. 

Hence,  in  an  action  for  the  breach  of  a  contract  to  transport  goods, 
the  difference  between  the  price,  at  the  point  where  the  goods  are  and 
that  to  which  they  were  to  be  transported,  is  taken  as  the  measure  of 
damages:  and  in  an  action  against  a  vendor  for  not  delivering  the 
chattels  sold,  the  vendee  is  allowed  the  market  price  upon  the  day  fixed 
for  the  delivery.  Although  this,  in  both  cases,  amounts  to  an  allow- 
ance of  profits,  yet,  as  those  profits  do  not  depend  upon  any  contin- 
gency, their  recovery  is  permitted.  It  is  regarded  as  certain  that  the 
goods  would  have  been  worth  the  established  market  price,  at  the  place 
and  on  the  day  when  and  where  they  should  have  been  delivered. 

On  the  other  hand,  in  cases  of  illegal  capture,  or  of  the  insurance  of 
goods  lost  at  sea,  there  can  be  no  recovery  for  the  probable  loss  of 
profits  at  the  port  of  destination.  The  principal  reason  for  the  differ- 
ence between  these  cases  and  that  of  the  failure  to  transport  goods 
upon  land  is,  that  in  the  latter  case  the  time  when  the  goods  should 
have  been  delivered,  and  consequently  that  when  the  market  price  is 
to  be  taken,  can  be  ascertained  \\-ith  reasonable  certainty ;  while  in  the 
former  the  fluctuation  of  the  markets  and  the  contingencies  affecting 
the  length  of  the  voyage  render  every  calculation  of  profits  speculative 
and  unsafe. 

There  is  also  an  additional  reason,  \az.,  the  difficulty  of  obtaining 
reliable  e^^dence  as  to  the  state  of  the  markets  in  foreign  ports;  that 
these  are  the  true  reasons  is  shown  by  the  language  of  Mr.  Justice 
Story,  in  the  case  of  the  schooner  Lively  (1  Gallis.  315),  which  was 
a  case  of  illegal  capture.  He  says:  "Independent,  however,  of  all 
authority,  I  am  satisfied  upon  principle  that  an  allowance  of  damages, 
upon  the  basis  of  a  calculation  of  profits,  is  inadmissible.  The  rule 
would  be  in  the  highest  degree  unfavorable  to  the  interests  of  the  com- 
munity. The  subject  would  be  involved  in  utter  uncertainty.  The 
calculation  would  proceed  upon  contingencies,  and  would  require  a 
knowledge  of  foreign  markets  to  an  exactness  in  point  of  tune  and 
value  which  would  sometimes  present  embarrassing  obstacles.  Much 
would  depend  upon  the  length  of  the  voyage,  and  the  season  of  the 
arrival;  much  upon  the  vigilance  and  acti\aty  of  the  master,  and  much 
upon  the  momentary  demand.  After  all,  it  would  be  a  calculation 
upon  conjectures  and  not  upon  facts." 

Similar  language  is  used  in  the  cases  of  the  Amiable  Nancy  (3  Wheat. 


SECT.  III.]  GRIFFIN  V.  COLVER.  713 

546)  and  L'Amistad  de  Rues  (5  Wheat.  385).  Indeed,  it  is  clear  that 
whenever  profits  are  rejected  as  an  item  of  damages,  it  is  because  they 
are  subject  to  too  many  contingences,  and  are  too  dependent  upon  the 
fluctuations  of  markets  and  the  chances  of  business,  to  constitute  a 
safe  criterion  for  an  estimate  of  damages.  This  is  to  be  inferred  from 
the  cases  in  our  ovm  courts.  The  decision  in  the  case  of  Blanchard  r. 
Ely  (21  Wend.  342)  must  have  proceeded  upon  this  ground,  and  can, 
as  I  apprehend,  be  supported  upon  no  other.  It  is  true  that  Judge 
Cowen,  in  giving  his  opinion,  quotes  from  Pothier  the  following  rule 
of  the  ci-vil  law,  viz.:  "  In  general,  the  parties  are  deemed  to  have  con- 
templated only  the  damages  and  injury  which  the  creditor  might  suffer 
from  the  non-performance  of  the  obligations  in  respect  to  the  particular 
thing  which  is  the  object  of  it,  and  not  such  as  may  have  been  acci- 
dentally occasioned  thereby  in  respect  to  his  ova\  (other)  affairs." 
But  this  rule  had  no  application  to  the  case  then  before  the  court.  It 
applies  only  to  cases  where,  by  reason  of  special  circumstances  having 
no  necessary  connection  \\'ith  the  contract  broken,  damages  are  sus- 
tained which  would  not  ordinarily  or  naturally  flow  from  such  breach : 
as  where  a  party  is  pre\ented  by  the  breach  of  one  contract  from  avail- 
ing himself  of  some  other  collateral  and  independent  contx-act  entered 
into  wdth  other  parties,  or  from  performing  some  act  in  relation  to  his 
OMTi  business  not  necessarily  connected  "w-ith  the  agreement.  An  in- 
stance of  the  latter  kind  is  where  a  canon  of  the  church,  by  reason  of 
the  non-delivery  of  a  horse  pursuant  to  agreen^ent,  was  prevented 
from  arri\dng  at  his  residence  in  time  to  collect  his  tithes. 

In  such  cases  the  damages  sustained  are  disallowed,  not  because 
they  are  imcertain,  nor  because  they  are  merely  consequential  or  re- 
mote, but  because  they  cannot  be  fairly  considered  as  having  been 
■v\dthin  the  contemplation  of  the  parties  at  the  time  of  entering  into 
the  contract.  Hence  the  objection  is  removed,  if  it  is  shown  that  the 
contract  was  entered  into  for  the  express  purpose  of  enabling  the  party 
to  fulfill  his  collateral  agreement,  or  perform  the  act  supposed.  (Sedg. 
on  Dam.,  c.  3.) 

In  Blanchard  r.  Ely  the  damages  claimed  consisted  in  the  loss  of  the 
use  of  the  very  article  which  the  plaintift'  had  agreed  to  construct;  and 
were,  therefore,  in  the  plainest  sense,  the  direct  and  proximate  result 
of  the  breach  alleged.  Moreover,  that  use  was  contemplated  by  the 
parties  in  entering  into  the  contract,  and  constituted  the  object  for 
which  the  steamboat  was  built.  It  is  clear,  therefore,  that  the  rule  of 
Pothier  had  nothing  to  do  with  the  case.  Those  damages  must  then 
have  been  disallowed,  because  they  consisted  of  profits  depending,  not, 
as  in  the  case  of  a  contract  to  transport  goods,  upon  a  mere  question 
of  market  value,  but  upon  the  fluctuations  of  travel  and  of  trade,  and 
many  other  contingencies.  The  citation,  by  Judge  Cowen,  of  the 
maritime  cases  to  which  I  have  referred,  tends  to  confirm  this  view. 
This  case,  therefore,  is  a  direct  authority  in  support  of  the  doctrine 


714  GRIFFIN  V.  COLVER.  [CHAP.  VI. 

that  whenever  the  profits  claimed  depend  upon  contingencies  of  the 
character  referred  to,  they  are  not  recoverable. 

The  case  of  Masterton  v.  The  Mayor,  &c.,  of  BrooklvTi  (7  Hill,  61) 
decides  nothing  in  opposition  to  this  doctrine.  It  simply  goes  to  sup- 
port the  other  branch  of  the  rule,  viz.,  that  profits  are  allowed  where 
they  do  not  depend  upon  the  chances  of  trade,  but  upon  the  market  I 

value  of  goods,  the  price  of  labor,  the  cost  of  transportation,  and  other  >.; 

questions  of  the  like  nature,  which  can  be  rendered  reasonably  certain  V 

by  evidence. 

From  these  authorities  and  principles  it  is  clear  that  the  defendants 
were  not  entitled  to  measure  their  damages  by  estimating  what  they 
might  have  earned  by  the  use  of  the  engine  and  their  other  macliinery 
had  the  contract  been  complied  with.  Nearly  every  element  enter- 
ing into  such  a  computation  would  have  been  of  that  uncertain 
character  which  has  uniformly  prevented  a  recovery  for  speculative 
profits. 

But  it  by  no  means  follows  that  no  allowance  could  be  made  to  the 
defendants  for  the  loss  of  the  use  of  their  machinery.  It  is  an  error 
to  suppose  that  "  the  law  does  not  aim  at  complete  compensation  for  the 
injury  sustained,"  but  "seeks  rather  to  divide  than  satisfy  the  loss." 
(Sedg.  on  Dam.,  c.  3.)  The  broad,  general  rule  in  such  cases  is,  that 
the  party  injured  is  entitled  to  recover  all  his  damages,  including  gains 
prevented  as  well  as  losses  sustained;  and  this  rule  is  subject  to  but 
two  conditions:  The  damages  must  be  such  as  may  fairly  be  supposed 
to  have  entered  into  the  contemplation  of  the  parties  when  they  made 
the  contract,  that  is,  must  be  such  as  might  naturally  be  expected  to 
follow  its  \aolation ;  and  they  must  be  certain,  both  in  their  nature  and 
in  respect  to  the  cause  from  which  they  proceed. 

The  familiar  rules  on  the  subject  are  all  subordinate  to  these.  For 
instance :  That  the  damages  must  flow  directly  and  naturally  from  the 
breach  of  contract,  is  a  mere  mode  of  expressing  the  first;  and  that 
they  must  be  not  the  remote  but  proximate  consequence  of  such 
breach,  and  must  not  be  speculative  or  contingent,  are  different  modi- 
fications of  the  last. 

These  two  conditions  are  entirely  separate  and  independent,  and  to 
blend  them  tends  to  confusion;  thus  the  damages  claimed  maj'  be  the 
ordinary  and  natural,  and  even  necessary  result  of  the  breach,  and  yet, 
if  in  their  nature  uncertain,  they  must  be  rejected;  as  in  the  case  of 
Blanchard  v.  FAy,  where  the  loss  of  the  trips  was  the  direct  and  neces- 
sary consequence  of  the  plaintiff's  failure  to  perform.  So  they  may  be 
definite  and  certain,  and  clearly  consequent  upon  the  breach  of  con- 
tract, and  yet  if  such  as  would  not  naturally  flow  from  such  breach, 
but,  for  sonie  special  circumstances,  collateral, to  the  contract  itself  or 
foreign  to  its  apparent  object,  they  cannot  be  recovered;  as  in  the 
case  of  the  loss  by  the  clergyman  of  his  tithes  by  reason  of  the  failure 
to  deliver  the  horse. 


SECT.  III.]  GRIFFIN  V.  COLVER.  715 

Cases  not  unfrequently  occur  in  which  both  these  conditions  are 
fulfilled :  where  it  is  certain  that  some  loss  has  been  sustained  or  damage 
incurred,  and  that  such  loss  or  damage  is  the  direct,  immediate  and 
natural  consequence  of  the  breach  of  contract,  but  where  the  amount 
of  the  damages  may  be  estimated  in  a  variety  of  ways.  In  all  such 
cases  the  law,  in  strict  conformity  to  the  principles  already  advanced, 
uniformly  adopts  that  mode  of  estimating  the  damages  which  is  most 
definite  and  certain.  The  case  of  Freeman  v.  Clute  (3  Barb.  S.  C.  R., 
424)  is  a  case  of  this  class,  and  affords  an  apt  illustration  of  the  rule. 
That  case  was  identical  in  many  of  its  features  with  the  present.  The 
contract  there  was  to  construct  a  steam  engine  to  be  used  in  the  process 
of  manufacturing  oil,  and  damages  were  claimed  for  delay  in  furnishing 
it.  It  was  insisted  in  that  case,  as  in  this,  that  the  damages  were  to  be 
estimated  by  ascertaining  the  amount  of  business  which  could  have 
been  done  by  the  use  of  the  engine,  and  the  profits  that  would  have 
thence  accrued.  This  claim  was  rejected  by  Mr.  Justice  Harris,  be- 
fore whom  the  cause  was  tried,  upon  the  precise  ground  taken  here. 
But  he  nevertheless  held  that  compensation  was  to  be  allowed  for  the 
"loss  of  the  use  of  the  plaintiff's  mill  and  other  machinery."  He  did 
not,  it  is  true,  specify  in  terms  the  mode  in  wliich  the  value  of  such 
use  was  to  be  estimated;  but  as  he  had  previously  rejected  the 
probable  profits  of  the  business  as  the  measure  of  such  value,  no 
other  appropriate  data  would  seem  to  have  remained  but  the  fair 
rent  or  hire  of  the  mill  and  machinery;  and  such  I  have  no  doubt 
was  the  meaning  of  the  judge.  Thus  understood,  the  decision  in 
that  case,  and  the  reasoning  upon  which  it  was  based,  were  I  think 
entirely  accurate. 

Had  the  defendants  in  the  case  of  Blanchard  v.  Ely  (supra)  taken 
the  ground  that  they  were  entitled  to  recoup,  not  the  uncertain  and 
contingent  profits  of  the  trips  lost,  but  such  sum  as  they  could  have 
realized  by  chartering  the  boat  for  those  trips,  I  think  their  claim 
must  have  been  sustained.  The  loss  of  the  trips,  which  had  certainly 
occurred,  was  not  only  the  direct  but  the  immediate  and  necessary 
result  of  the  breach  of  the  plaintiffs'  contract. 

The  rent  of  a  mill  or  other  similar  property,  the  price  which  should 
be  paid  for  the  charter  of  a  steamboat,  or  the  use  of  machinery,  &c., 
&c.,  are  not  only  susceptible  of  more  exact  and  definite  proof,  but  in  a 
majority  of  cases  would,  I  think,  be  found  to  be  a  more  accurate  meas- 
ure of  the  damages  actually  sustained  in  the  class  of  cases  referred  to, 
considering  the  contingencies  and  hazards  attending  the  prosecution 
of  most  kinds  of  business,  than  any  estimate  of  anticipated  profits; 
just  as  the  ordinary  rate  of  interest  is  upon  the  whole  a  more  accurate 
measure  of  the  damages  sustained  in  consequence  of  the  non-payment 
of  a  debt  than  any  speculative  profit  which  the  creditor  might  expect 
to  realize  from  the  use  of  the  money.  It  is  no  answer  to  this  to  say 
that,  in  estimating  what  would  be  the  fair  rent  of  a  mill,  we  must  take 


716  ALLISON  V.  CHANDLER.  [CHAP.  VI. 

into  consideration  all  the  risks  of  the  business  in  which  it  is  to  be  used. 
Rents  are  graduated  according  to  the  value  of  the  property  and  to  an 
average  of  profits  arrived  at  by  very  extended  obser^■ation;  and  so 
accurate  are  the  results  of  experience  in  this  respect  that  rents  are 
rendered  nearly  if  not  cjuite  as  certain  as  the  market  value  of  commo- 
dities at  a  particular  time  and  place. 

The  proper  rule  for  estimating  this  portion  of  the  damages  in  the 
present  case  was,  to  ascertain  what  would  have  been  a  fair  price  to 
pay  for  the  use  of  the  engine  and  machinery,  in  view  of  all  the  hazards 
and  chances  of  the  business;  and  this  is  the  rule  which  I  understand 
the  referee  to  have  adopted.  There  is  no  error  in  the  other  allowances 
made  by  the  referee.    The  judgment  should  therefore  be  affirmed. 

All  the  judges  concurring, 

Judgment  affirmed. 


ALLISON  V.  CHANDLER. 
Supreme  Court  of  Michigan,  1863.       ^ 

[Reported  11  Mich.  542.] 

Error  to  Wa\Tie  Circuit,  where  Allison  brought  suit  against  Chan- 
dler for  trespass  in  breaking  into  a  store  occupied  l^y  plaintiff  in  Detroit, 
and  tearing  off  the  roof,  and  committing  other  injuries  by  which  it  was 
rendered  untenantable.  .  .  . 

The  Circuit  Judge  charged  the  jury,  upon  the  question  of  damages, 
as  follows: 

1st.  If  the  plaintiff  is  entitled  to  recover,  he  can  only  recover  his 
actual  damages  if  the  jury  find  that  the  defendant,  in  doing  the  acts 
complained  of,  acted  without  malice  and  in  good  faith,  under  the  belief 
that  he  had  a  legal  right  to  the  possession  of  the  store,  and  to  tear  it 
down,  and  that,  in  determining  the  question  of  damages,  they  should 
not  take  into  consideration  the  \alue  of  the  good  will  of  the  place,  or 
the  plaintiff's  probable  profits. 

2d.  That  if  the  jury  find  for  the  plaintiff,  and  find  that  the  de- 
fendant, in  tearing  do^\^l  the  store,  acted  in  good  faith,  and  under  an 
honest  belief  that  he  had  a  legal  right  to  do  so,  that  then  the  plaintiff 
can  only  recover  his  actual  damages;  and  in  determining  them,  the 
jury  must  confine  themselves  to  the  expenses  of  repairs  after  the  first 
tearing  off  the  roof,  his  loss  of  time  and  expense  of  moving,  with  the 
loss  occasioned  by  the  interruption  of  his  business  during  the  time  of 
his  removal,  together  vAth  the  difference,  if  any,  between  the  rent 
paid  and  the  fair  rental  value  of  the  store  for  the  year.  And  in  deter- 
mining this,  the  jury  will  take  into  consideration  all  the  facts  and  cir- 
cumstances of  the  case. 

To  this  charge  the  plaintiff  excepted,  and  judgment  having  been 


SECT.   III.]  .  ALLISON  V.  CIL\NDLER.  717 

rendered  in  his  favor  for  $100  only,  the  case  came  up  for  review  upon 
the  several  exceptions  thus  taken. 

Christiancy,  J.  .  .  .  Since,  from  the  nature  of  the  case,  the  damages 
cannot  be  estimated  with  certainty,  and  there  is  a  risk  of  giving  by 
one  course  of  trial  less,  and  by  the  other  more  than  a  fair  compensa- 
tion —  to  say  nothing  of  justice  —  does  not  sound  policy  require  that 
the  risk  should  be  thrown  upon  the  wrong  doer  instead  of  the  injured 
party?  However  this  question  may  be  answered,  we  can  not  resist 
the  conclusion  that  it  is  better  to  run  a  sliglit  risk  of  giving  somewhat 
more  than  actual  compensation,  than  to  adopt  a  rule  which,  under  the 
circumstances  of  the  case,  will,  in  all  reasonable  probability,  preclude 
the  injured  party  from  the  recovery  of  a  large  proportion  of  the  damages 
he  has  actually  sustained  from  the  injury,  though  the  amount  thus 
excluded  can  not  be  estimated  with  accuracy  by  a  fixed  and  certain 
rule.  Certainty  is  doubtless  very  desirable  in  estimating  damages  in 
all  cases:  and  where,  from  the  nature  and  circumstances  of  the  case, 
a  rule  can  be  discovered  by  which  adequate  compensation  can  be 
accurately  measured,  the  rule  should  be  applied  in  actions  of  tort,  as 
well  as  in  those  upon  contract.  Such  is  quite  generally  the  case  in 
trespass  and  trover  for  the  taking  or  conversion  of  personal  property; 
if  the  property  (as  it  generally  is)  be  such  as  can  be  readily  obtained 
in  the  market  and  has  a  market  value.  But  shall  the  injured  party 
in  an  action  of  tort,  which  may  happen  to  furnish  no  element  of  cer- 
tainty, be  allowed  to  recover  no  damages  (or  merely  nominal),  because 
he  can  not  show  the  exact  amount  with  certainty,  though  he  is  ready 
to  show,  to  the  satisfaction  of  the  jury,  that  he  suffered  large  damages 
by  the  injury?  Certainty,  it  is  true,  would  thus  be  attained;  but  it 
would  be  the  certainty  of  injustice.  And,  though  a  rule  of  certainty 
may  be  found  which  will  measure  a  portion  and  07}h/  a  portion  of  the 
damages,  and  exclude  a  very  material  portion,  which  it  can  be  ren- 
der(»d  morally  certain  the  injured  party  has  sustained,  though  its 
exact  amount  can  not  be  measured  by  a  fixed  rule;  here  to  apply  any 
such  rule  to  the  whole  case,  is  to  misapply  it:  and  so  far  as  it  excludes 
all  damages  which  can  not  be  measured  by  it,  it  perpetrates  positive 
injustice  under  the  pretence  of  administering  justice. 

The  law  does  not  require  impossibilities;  and  can  not  therefore  re- 
quire a  higher  degree  of  certainty  than  the  nature  of  the  case  admits. 
And  we  can  see  no  good  reason  for  requiring  any  higher  degree  of  cer- 
tainty in  respect  to  the  amount  of  damages,  than  in  respect  to  any 
other  branch  of  the  cause.  Juries  are  allowed  to  act  upon  probable 
and  inferential,  as  well  as  direct  and  positive  proof.  And  when,  from 
the  nature  of  the  case,  the  amount  of  the  damages  can  not  be  esti- 
mated with  certainty,  or  only  a  part  of  them  can  be  so  estimated, 
we  can  see  no  objection  to  placing  l)efore  the  jury  all  the  facts  and 
circumstances  of  the  case,  having  any  tendency  to  show  damages, 
or  their  probable  amount;  so  as  to  enable  them  to  make  the  most  in- 


•f 


718  ALLISON  V.  CHANDLER.  [CHAP.  VI. 

telHgible  and  probable  estimate  which  the  nature  of  the  case  will  per- 
mit. This  should,  of  course,  be  done  with  such  instructions  and 
advice  from  the  Court  as  the  circumstances  of  the  case  may  require, 
and  as  may  tend  to  prevent  the  allowance  of  such  as  may  be  merely 
possible,  or  too  remote  or  fanciful  in  their  character  to  be  safely  con- 
sidered as  the  result  of  the  injury. 

In  the  adoption  of  this  course  it  will  seldom  happen  that  the  Court, 
hearing  the  evidence,  will  not  thereby  possess  the  means  of  forming  a 
satisfactory  judgment  whether  the  damages  are  unreasonable,  or  ex- 
orbitant ;  and,  if  satisfied  they  are  so,  the  Court  have  always  the  power 
to  set  aside  the  verdict  and  grant  a  new  trial. 

The  justice  of  the  principles  we  have  endeavored  to  explain  will, 
we  think,  be  sufficiently  manifest  in  their  application  to  the  present 
case.  The  evidence  strongly  tended  to  show  an  ouster  of  the  plaintiff 
for  the  balance  of  the  term,  by  the  defendant's  act.  This  term  was 
the  property  of  the  plaintiff;  and,  as  proprietor,  he  was  entitled  to  all 
the  benefits  he  could  derive  from  it.  He  could  not  by  law  be  com- 
pelled to  sell  it  for  such  sum  as  it  might  be  worth  to  others;  and,  when 
tortiously  taken  from  him  against  his  will,  he  can  not  justly  be  limited 
to  such  sum  - —  or  the  difference  between  the  rent  he  was  pajvnng  and 
the  fair  rental  \alue  of  the  premises  —  if  the  premises  were  of  much 
greater  and  peculiar  value  to  him,  on  account  of  the  business  he  had 
established  in  the  store,  and  the  resort  of  customers  to  that  particular 
place,  or  the  good  "will  of  the  place,  in  his  trade  or  business.  His  right 
to  the  full  enjoyment  of  the  use  of  the  premises,  in  any  manner  not 
forbidden  by  the  lease,  was  as  clear  as  that  to  sell  or  dispose  of  it,  and 
was  as  much  his  property  as  the  term  itself,  and  entitled  to  the  same 
protection  from  the  laws.  He  had  used  the  premises  as  a  jewelry  store, 
and  place  of  business  for  the  repairing  of  watches,  making  gold  pens,  &c. 
This  business  must  be  broken  up  by  the  ouster,  unless  the  plaintiff 
could  obtain  another  fit  place  for  it;  and  if  the  only  place  he  could 
obtain  was  less  fitted  and  less  valuable  to  him  for  that  purpose,  then 
such  business  would  be  injured  to  the  extent  of  this  difference;  and  this 
would  be  the  natural,  direct  and  immediate  consequence  of  the  injury. 
To  confine  the  plaintiff'  to  the  difference  between  the  rent  paid  and  the 
fair  rental  value  of  the  premises  to  others,  for  the  balance  of  the  term, 
would  be  but  a  mockery  of  justice.  To  test  this,  suppose  the  plaintiff 
is  actually  paying  that  full  rented  value,  and  has  established  a  business 
upon  the  premises,  the  clear  gains  or  profits  of  which  have  been  an 
average  of  one  thousand  dollars  per  year;  and  he  is  ousted  from  the 
premises  and  this  business  entirely  broken  up  for  the  balance  of  the 
term;  can  he  be  allowed  to  recover  nothing  but  six  cents  damages  for 
his  loss?  To  ask  such  a  question  is  to  answer  it.  The  rule  which 
would  confine  the  plaintiff'  to  the  difference  between  such  rental  value 
and  the  stipulated  rent  can  rest  only  upon  the  assumption  that  the 
plaintiff'  might  (as  in  case  of  personal  property)  go  at  once  into  the 


SECT.  III.]  ALLISON  V.  CHANDLER.  719 

market  and  obtain  another  building  equally  well  fitted  for  his  business, 
and  that  for  the  same  rent;  and  to  justify  such  a  rule  of  damages  this 
assumption  must  be  taken  as  a  conclusive  presumption  of  law.  How- 
ever such  a  presumption  might  be  likely  to  accord  with  the  fact  in  the 
city  of  New  York,  in  most  western  cities  and  towTis  it  would  be  so  ob- 
viously contrary  to  the  common  experience  of  the  facts,  as  to  make 
the  injustice  of  the  rule  gross  and  palpable.  But  we  need  not  further 
discuss  this  point,  as  a  denial  of  any  such  presumption  was  clearly 
involved  in  our  former  decision. 

The  plaintiff  in  this  case  did  hire  another  store,  "the  best  he  could 
obtain,  but  not  nearly  so  good  for  his  business"  —  "lais  customers 
did  not  come  to  the  new  store,  and  there  was  not  so  much  of  a  thorough- 
fare by  it,  not  one  one  quarter  of  the  travel,  and  he  relied  much  upon 
chance  custom,  especially  in  the  watch  repairing  and  other  mechanical 
business."  This  injury  to  the  plaintiff's  business  was  as  clearly  a  part 
of  his  damages  as  the  loss  of  the  term  itself.  This  point  also  was  de- 
cided in  the  former  case,  and  we  there  further  held  that  the  declara- 
tion was  sufficient  to  admit  the  proof  of  this  species  of  loss. 

Now  if  the  plaintiff  is  to  be  allowed  to  recover  for  this  injury  to  his 
business,  it  would  seem  to  follow,  as  a  necessary  consequence,  that 
the  value  of  that  business  before  the  injury  as  well  as  after,  not  only 
might,  but  should  be  shown,  as  an  indispensable  means  of  showing  the 
amount  of  loss  from  the  injury.  If  the  business  were  a  losing  one  to 
the  plaintiff  before,  his  loss  from  its  being  broken  up  or  diminished  (if 
any  thing)  would  certainly  be  less  than  if  it  were  a  profitable  one.  It 
is  not  the  amonnt  of  business  done,  but  the  gain  or  -profit  arising  from  it, 
which  constitutes  its  value. 

But  it  is  insisted  that  loss  of  profits  constitutes  no  proper  ground  or 
element  of  damages.  If  there  be  any  such  rule  of  law  it  is  certainly 
not  a  universal,  and  can  hardly  be  called  a  general  rule.  Decisions,  it 
is  true,  may  be  found  which  seem  to  take  it  for  granted  that  the  rule 
is  universal.  But  there  are  numerous  cases,  even  for  breach  of  contract, 
in  which  profits  have  been  properly  held  to  constitute,  not  only  an 
eU'vient,  but  a  measure  (and  sometimes  the  only  measure)  of  damages: 
as  in  Masterton  v.  The  Mayor,  7  Hill,  61;  Phil.  W.  &  B.  R.  R.  Co.  v. 
Howard,  13  How.  344.  And  in  actions  for  breach  of  contract  in  not 
delivering  goods  (as  wheat  or  other  articles)  having  a  marketable 
value,  as  well  as  in  most  actions  of  trespass  or  trover  for  the  taking  or 
conversion  of  such  property  —  wherever  the  difference  between  the 
contract  price,  or  the  market  value  at  the  time  of  taking  or  conversion, 
and  the  higher  market  value  at  any  subsequent  period,  is  held  to  con- 
stitute the  damages  —  in  all  such  cases  this  difference  of  price  is  but 
another  name  for  profits,  and  is  yet  very  properly  held  to  be  a  measure 
of  damages.  There  is  nothing  therefore  in  the  nature  of  profits,  as 
such,  which  prevents  their  allowance  as  damages.  But  in  many,  and 
perhaps  the  majority,  of  cases  upon  contract  in  which  the  question 


720  ALLISON  V.  CHANDLER.  [CHAP.  VI. 

has  arisen,  they  have  been  held  to  be  too  remote  or  dependent  upon 
too  many  contingencies  to  be  calculated  with  reasonable  certainty,  or 
to  have  been  within  the  contemplation  of  the  parties  at  the  time  of 
entering  into  the  contract. 

But  there  are  also  cases  for  breach  of  contract  where,  though  the 
profits  were  in  their  nature  somewhat  uncertain  and  contingent  (and 
in  most  of  them  quite  as  much  so  as  in  the  present  case),  they  were  yet 
held  to  constitute,  not  strictly  a  measure,  but  an  element  of  damages 
proper  for  the  consideration  of  a  jury,  to  enable  them  to  form  a  judg- 
ment or  probable  estimate  of  the  damages;  as  in  McNeill  r.  Reid, 
9  Bing.  68;  Bagley  v.  Smith,  10  N.  Y.  489;  Gale  v.  Leckie,  2  Stark  107; 
Ward  V.  Smith,  11  Price,  19;  Driggs  v.  Dwight,  17  Wend.  71;  and  see 
Passenger  v.  Thorburn,  35  Barb.  17.  iVnd  in  Waters  v.  Towers,  20 
E.  L.  &  E.  410  the  jury  were  allowed  to  take  into  consideration  the 
profits  which  might  have  been  made  upon  a  collateral  contract  (though 
void  by  the  Statute  of  Frauds);  and  see  McNeill  v.  Reid,  supra;  while 
by  the  American  authorities,  profits  of  this  description  have  been  almost 
uniformly  rejected. 

But  whatever  may  be  the  rule  in  actions  upon  contract,  we  think 
a  more  liberal  rule  in  regard  to  damages  for  profits  lost,  should  pre^'ail 
in  actions  purely  of  tort  (excepting  perhaps  the  action  of  trover).  Not 
that  they  should  be  allowed  in  all  cases  without  distinction:  for  there 
are  some  cases  where  they  might,  in  their  nature,  be  too  entirely  re- 
mote, speculative  or  contingent,  to  form  any  reliable  basis  for  a  proba- 
ble opinion.  And  perhaps  the  decisions  which  have  excluded  the 
anticipated  profits  of  a  voyage  broken  up  by  illegal  capture,  or  collision, 
may  be  properly  justified  upon  this  ground:  upon  this,  however,  we 
express  no  opinion.  But  generally,  in  an  action  purely  of  tort,  where 
the  amount  of  profits  lost  by  the  injury  can  be  shown  with  reasonable 
certaintv,  we  think  thev  are  not  onlv  admissible  in  evidence,  but  that 
they  constitute,  thus  far,  a  safe  measure  of  damages ;  as  when  they  are 
but  another  name  for  the  use  of  a  mill  (for  example),  as  in  W'hite  v. 
Moseley,  8  Pick.  356;  or  for  the  use  of  any  other  property  where  the 
value  or  profit  of  the  use  can  be  made  to  appear  with  reasonable  cer- 
tainty by  the  light  of  past  experience,  as  might  often  be  done  where 
such  profits  had  been  for  a  considerable  time  uniform  at  the  same 
season  of  the  year,  and  there  are  no  circumstances  tending  to  show  a 
probable  diminution,  had  the  injury  not  occurred.  And  possibly  the 
same  view,  subject  to  the  like  qualifications,  might  have  been  taken  of 
the  profits  of  the  plaintiff's  business,  had  it  been  confined  to  the  me- 
chanical trade  of  repairing  watches  and  making  gold  pens,  particularly 
if  done  purely  as  a  cash  business.  But  this  business  seems  to  have 
been  carried  on  with  that  of  the  sale  of  jewelry ;  he  kept  a  jewelry  store, 
and  the  profits  of  so  much  of  his  l)usiness  as  may  be  regarded  as  mer- 
cantile business,  are  dependent  upon  many  more  contingencies,  and 
therefore  more  uncertain,  especially  if  sales  are  made  upon  credit. 


*•;. 
* 


SECT.  III.]  ALLISON  l\  CHANDLER.  721 

Past  profits,  therefore,  could  not  safely  be  taken  as  the  exact  measure 
of  future  profits;  but  all  the  various  contingencies  by  which  such 
profits  would  probably  be  afi'ected  should  be  taken  into  consideration 
by  the  jury,  and  allowed  such  weig^ht  as  they,  in  the  exercise  of  good 
sense  and  sound  discretion,  should  think  them  entitled  to.  Past  profits 
in  such  cases,  where  the  business  has  been  continued  for  some  length 
of  time,  would  constitute  a  very  material  aid  to  the  jury  in  arri\ing  at 
a  fair  probable  estimate  of  the  future  profits,  had  the  business  still 
continued  without  interruption. 

Accordingly  such  past  profits  have  been  allowed  for  this  purpose, 
both  in  actions  ex  contractu  and  ex  delicto,  though  more  frequently  in 
the  latter,  where  from  the  nature  of  the  case  no  element  of  greater  cer- 
tainty appeared,  and  the  actual  damages  must  be  more  or  less  a  matter 
of  opinion;  and  where,  as  in  the  present  case,  though  somewhat  incon- 
clusive, it  was  the  best  evidence  the  nature  of  the  case  admitted.  See 
Wilkes  r.  Hungerford,  2  Bing.  N.  C.  281;  Ingram  v.  Lawson,  6  Bing. 
N.  C.  212;  Lacour  i'.  The  Mayor,  4  Duer,  406;  and  the  following  in 
actions  upon  contract,  Driggs  v.  D\\aght,  17  Wend.  71;  Bagley  v. 
Smith,  10  N.  Y.  489. 

But  it  is  urged  by  the  counsel  for  the  defendant  that  damages  for 
the  loss  of  profits  ought  not  to  be  allowed,  because  they  could  not  have 
been  within  the  contemplation  of  the  defendant.  Whether,  as  matter 
of  fact,  this  is  likely  to  have  been  true,  we  do  not  deem  it  important 
to  inquire.  It  is  wholly  immaterial  whether  the  defendant  in  com- 
mitting the  trespass  actually  contemplated  this,  or  any  other  species 
of  damage  to  the  plaintiff.  This  is  a  consideration  which  is  confined 
entirely  to  cases  of  contracts,  where  the  question  is,  what  was  the  ex- 
tent of  obligation,  in  this  respect,  which  both  parties  understood  to 
be  created  by  the  contract.  But  where  a  party  commits  a  trespass  he 
must  be  held  to  contemplate  all  the  damages  wliich  may  legitimately 
follow  from  his  illegal  act.  And  where  a  party,  though  acting  in  good 
faith,  yet  knowing  his  right  to  be  disputed  by  a  party  in  possession, 
instead  of  resorting  to  a  judicial  trial  of  his  right,  assumes  to  take  the 
law  into  his  own  hands,  and,  by  violence,  to  seize  the  property,  or 
right  in  dispute,  he  must  be  held  thereby  to  assume,  on  the  one  hand, 
the  risk  of  being  able  to  show,  when  the  other  party  brings  him  into 
court,  that  the  property  or  right  was  his  or  that  his  act  was  legal; 
or,  on  the  other,  of  paying  all  the  damages  the  injured  party  may  have 
suffered  from  the  injury;  and  if  those  damages  are  in  their  nature  un- 
certain, then  such  as,  from  all  the  circumstances,  or  the  best  light  the 
nature  of  the  case  affords,  a  jury  in  the  exercise  of  good  sense  and 
sound  discretion,  may  find  to  be  a  full  compensation. 

We  are  therefore  entirely  satisfied  that  all  the  questions  put  to  the 
witness,  Allison,  touching  the  nature,  extent  and  profits  of  the  busi- 
ness, before  and  after  the  trespass,  were  competent,  and  improperly 
overruled;  and  that  the  charge  of  the  Court,  so  far  as  it  excluded  all 


722  CHICAGO  V.  HrENERBEIN.  [CHAP.  VI. 

consideration  of  the  good  will  of  the  place,  its  peculiar  value  to  the 
plaintiff,  and  his  probable  profits,  was  erroneous. 

The  judgment  must  be  reversed,  with  costs  to  the  plaintiff,  and  a 
new  trial  granted. 

The  other  Justices  concurred. 


CHICAGO  V.  HUENERBEIN. 
Supreme  Court  of  Illinois,  1877. 

[Reported  85  III.  594.] 

Walker,  J.  This  was  an  action  of  case,  against  the  city  of  Chicago, 
to  recover  damages  produced  by  throwing  stone,  earth,  etc.,  into  the 
mouth  of  a  small  stream  that  usually  discharged  into  the  canal,  whereby 
water  was  dammed  and  flowed  back  on  the  land,  and  six  or  seven  acres 
could  not  be  planted  or  cultivated  during  the  years  1871,  1872  and 
1873.  The  court  below  permitted  appellee  to  prove  that  if  the  land  had 
been  planted  with  potatoes,  the  ground  would  have  yielded  two  hun- 
dred bushels  to  the  acre,  and  that  they  would  have  sold  at  about  an 
average  of  seventy  cents  per  bushel  when  matured,  and  that  it  would 
have  cost  about  $35  per  acre  to  plant,  cultivate  and  market  the  pota- 
toes. And  thus  it  was  clauned  that  the  land  would  have  yielded  in 
the  aggregate  near  3,550  bushels,  and  would  have  sold  for  a  much 
larger  sum  than  was  found  by  the  jury. 

On  this  evidence  the  jury  found  a  verdict  for  plaintiff  for  the  sum 
of  SI, 250,  and  the  court,  after  overruling  a  motion  for  a  new  trial, 
rendered  judgment  on  the  verdict,  and  the  city  appeals. 

The  damages  in  this  case  are  excessive,  and  the  judgment  must  be 
reversed.  The  rule  for  the  assessment  of  damages  was  wrong.  In 
cases  of  this  character  the  true  measure  is  the  fair  rental  value  of  the 
ground  which  was  overflowed,  and  not  the  possible,  or  even  the  prob- 
able profits  that  might  have  been  made,  had  the  land  not  been  over- 
flowed. Such  damages  are  too  remote  and  speculative,  depending  on 
too  large  a  variety  of  contingencies  which  might  never  have  happened. 
The  result  of  the  application  of  the  rule  in  this  case  shows  its  wrong 
and  injustice.  Hence  the  rule  adopted  gave  appellee  nearly  $74  per 
acre  as  an  annual  rent.    This  manifests  the  incorrectness  of  the  rule. 

But  the  case  of  the  Chicago  and  Rock  Island  R.  R.  Co.  v.  Ward, 
16  111.  522,  is  referred  to,  as  sustaining  the  rule  adopted  by  the  court 
below.  That  case,  in  some  of  its  features,  is  like  the  case  at  bar.  In 
that  case  it  was  held,  the  proof  of  the  average  value  of  the  crop  at 
maturity  was  proper,  as  a  means  of  ascertaining  its  value  when 'de- 
stroyed. But  there,  the  crop  was  planted,  and  partly  if  not  fully 
cultivated  when  destroyed,  whilst  here  no  crop  was  ever  planted,  nor 


SECT.  III.]  LEEDS  V.  METROPOLITAN  GAS-LIGHT  CO.  723 

was  any  preparation  made  to  plant  the  ground.  It  was  overflowed 
before  the  planting  season  had  arrived.  But  even  if  the  principle  there 
announced  is  broad  enough  to  embrace  the  rule  adopted  in  this  case, 
we  must  hold  that  it  should  not  be  adopted  as  the  measure  of  damages. 
We  see  that  it  has  produced  wrong  and  injustice.  The  rule  announced 
in  that  case  has  not  been  followed  in  subsequent  cases.  See  Olmstead 
V.  Burke,  25  111.  86;  Cilley  r.  Hawkins,  48  111.  308;  Green  v.  Williams, 
45  111.  206;  and  Chapman  v.  Kirby,  49  III.  211. 

Inasmuch  as  this  land  was  not  planted,  and  no  one  could  know  or 
calculate  with  any  degree  of  certainty  what  such  a  crop  would  have 
produced  had  the  ground  been  planted,  the  only  certain  measure  of 
damages  is  the  rental  value  of  the  land  thus  overflowed,  and  the  use 
of  which  appellee  was  deprived.  Any  other  is  speculative  and  un- 
certain. Crops  not  planted  are  not  in  existence,  and  if  planted  are 
liable  to  so  large  a  number  of  contingencies  and  accidents,  that  what 
they  may  yield  can  only  be  a  matter  of  conjecture;  and  what  land 
might  produce,  and  what  the  crop  would  sell  for  when  produced,  is 
too  uncertain  to  be  adopted  as  a  rule  for  the  measure  of  damages  when 
a  person  has  been  deprived  of  the  use  of  land. 

Objections  have  been  urged  to  th^  declaration,  but  leave  is  given  to 
appellee,  if  he  choose,  to  amend,  so  as  to  remove  the  objections  urged. 

For  the  error  indicated,  the  judgment  of  the  court  below  is  reversed, 
and  the  cause  remanded. 

Judgment  reversed. 


LEEDS  V.  METROPOLITAN  GAS-LIGHT  CO. 

Court  of  Appeals,  New  York,  1882, 

[Reported  90  N.  Y.  26.] 

Finch,  J.  We  think  there  was  error  in  the  mode  of  submitting  to 
the  jury  the  question  of  damages.  Whether  there  was  any  evidence 
of  negligence  on  the  part  of  the  defendant  company  upon  which  the 
verdict  can  rest,  has  been  the  principal  controversy  on  the  appeal, 
but  need  not  be  decided,  since  upon  the  new  trial  which  must  result 
the  facts  may  be  entirely  different.  If  the  evidence  is  insufficient 
now,  it  is  possible  that  it  may  be  made  sufficient  then. 

The  plaintiif  was  injured  by  an  explosion  of  gas  in  the  cellar  or  vault 
of  the  house  occupied  by  him,  and  which  had  escaped  from  a  break  in 
the  defendant's  main.  The  character  of  his  injuries  was  described  by 
the  evidence,  and  among  other  things  it  was  proved  that  he  was  engaged 
in  business  at  the  time  of  the  injury,  but  had  not  been  able  to  attend 
to  business  since.  It  was  not  showTi  what  his  business  was,  or  the  value 
of  his  time,  or  any  facts  as  to  his  occupation  from  which  that  value 
could  be  estimated.    The  jiu*y  were  left  to  guess  or  speculate  upon  this 


724  LEEDS  V.  METROPOLITAN  GAS-LIGHT  CO.  [cHAP.  VI. 

value  without  any  basis  for  their  judgment,  so  far  as  loss  of  time  was 
an  element  of  the  damages  awarded.  The  court  charged  that  the 
plaintiff,  if  entitled  to  a  verdict,  was  "  entitled  to  recover  compensation 
for  the  time  lost  in  consequence  of  confinement  to  the  house,  or  in 
consequence  of  his  disability  to  labor  from  the  injury  sustained." 
The  defendant's  counsel  excepted  to  this  portion  of  the  charge,  assign- 
ing as  a  reason  or  ground  of  the  exception,  that  there  was  no  proof  in 
the  case  of  the  value  of  such  time.  The  answer  made  on  behalf  of  the 
plaintiff  is  a  criticism  on  the  form  of  the  exception.  It  is  said  that 
"  as  the  defendant's  counsel  did  not  ask  the  court  to  instruct  the  jury 
that  there  was  no  evidence  of  the  value  of  plaintiff's  time  the  only 
question  here  raised  is  whether  the  proposition  charged  is  law."  It 
was  not  necessary  to  make  that  request.  The  court  had  charged,  in  a 
case  where  no  value  of  lost  time  had  been  shown,  and  no  facts  on  which 
an  estimate  of  such  value  could  be  founded,  that  compensation  for 
such  lost  time  could  be  awarded  by  the  jury.  The  exception  was  aimed 
at  that  precise  proposition,  and  the  ground  upon  which  it  was  claimed 
to  be  erroneous  was  definitely  pointed  out.  The  charge,  therefore,  can 
only  be  defended  upon  two  grounds :  either,  that  e^adence  of  the  value 
of  the  lost  time  was  given,  or,  if  not,  that  the  jury  were  at  liberty  to 
guess  at  and  speculate  upon  that  value,  and  estimate  it  as  they  pleased. 
The  fii*st  gi'ound  we  have  showm  to  be  untenable,  and  the  exception 
consequently  requires  us  to  determine  the  second.  In  very  numerous 
actions  for  negligence,  both  those  where  death  had  resulted  and  which 
were  prosecuted  under  the  statute,  and  those  for  injuries  not  resulting 
in  death,  e\ddence  showing  the  occupation  or  business  of  the  injured 
party  and  tending  to  establish  his  earning  power  has  been  held  com- 
petent and  material.  (Grant  r.  City  of  Brookl^Ti,  41  Barb.  384;  Master- 
ton  V.  Village  of  Mount  Vernon,  58  N.  Y.  391 ;  Beisiegel  v.  N.  Y.  Central 
R.  R.  Co.,  40  id.  10.)  -And  that  is  so  because  the  element  of  damages 
which  consists  of  lost  time  is  purely  a  pecuniary  loss  or  injury,  and  for 
such  only  fair  and  just  compensation  must  be  given,  and  the  jury  have 
no  arbitrary  discretion,  but  must  bf  governed  by  the  weight  of  evi- 
dence. (Mclntyre  v.  N.  Y.  Central  R.  R.  Co.,  37  N.  Y.  289.)  The 
rule  of  recovery  is  compensation.  Where  the  loss  is  pecuniary  and  is 
present  and  actual  and  can  be  measured,  but  no  evidence  is  given  show- 
ing its  extent,  or  from  which  it  can  be  inferred,  the  jury  can  allow  nom- 
inal damages  only.  (Sedgwdck  on  Damages,  c.  2,  p.  47;  Brantingham  v. 
Fay,  1  Johns.  Cas.  264;  N.  Y.  Dry  Dock  Co.  v.  Mcintosh,  5  Hill,  290.) 
In  the  present  case  the  jury  knew  simply  that  time  was  lost  by  reason 
of  incapacity  to  labor.  They  were  bound  to  consider  it  of  some  value, 
but  could  not  go  beyond  nominal  damages,  and  give  compensation 
for  it  upon  an  arbitrary  standard  of  their  own.  This  they  were  per- 
mitted to  do.  Without  proof  of  the  extent  or  character  of  the  plain- 
tiff's pecuniary  loss,  they  were  left  to  fix  it  as  they  pleased.  Among 
the  elements  of  damage  in  cases  of  injury  for  negligence,  is  the  cost  of 


SECT.  III.]  BRADFORD  V.  CUNARD  STEAMSHIP  CO.  725 

the  cure,  the  bills  and  expenses  of  medical  attendance.  Suppose  that 
the  bare  fact  was  shown  that  the  deceased  had  a  doctor,  but  the  length 
of  his  attendance  was  not  given,  the  amount  of  his  charges  not  shown, 
would  it  do  to  permit  the  jury  to  give  compensation  for  the  cost  of  the 
cure  upon  their  own  guess  or  speculation  as  to  its  amount?  For  pain 
and  suffering,  or  injuries  to  the  feelings,  there  can  be  no  measure  of 
compensation,  saAC  the  arbitrary  judgment  of  a  jury.  But  that  is  a 
rule  of  necessity.  Where  actual  pecu2iiary  damages  are  sought,  some 
evidence  must  be  given  showing  their  existence  and  extent.  If  that  is 
not  done  the  jury  cannot  indulge  in  an  arbitrary  estimate  of  their  own. 
The  judgment  should  be  reversed,  a  new  trial  granted,  costs  to  abide 
the  event. 

Judgment  reversed. 


BRADFORD  v.  CUNARD   STEAMSHIP  COMPANY. 
Supreme  Judicial  Court  of  Massachusetts,  1888. 

[Reported  147  Mass.  55.] 

Contract  to  recover  for  damage  to  six  cases  of  woollen  dress  goods 
M'hile  being  carried  in  the  defendant's  steamship  Samaria. 

Trial  in  the  Superior  Court,  without  a  jury,  before  Pitman,  J.,  who 
reported  the  case  for  the  determination  of  this  court,  in  substance  as 
follows. 

The  defendant  did  not  deny  its  liability  to  the  plaintiffs  for  such 
damages  as  they  might  prove  by  competent  evidence.  An  auditor,  to 
whom  the  case  was  referred,  and  whose  findings  of  fact,  it  was  agreed, 
should  be  final,  reported  the  following  facts. 

The  invoice  value  of  the  goods,  to  which  the  plaintiffs'  claim  was 
limited  by  the  bill  of  lading,  was  $3,510.11.  The  goods  were  more  or  ' 
less  damaged  by  salt  water  and  soda  ash,  all  the  goods  in  tliree  of  the 
cases  being  injured,  and  a  varying  proportion  of  them  in  the  other  tlu'ee 
cases.  The  goods  were  insured  against  sea  perils  by  an  insurance 
company,  which  settled  the  plaintiffs'  claim  for  damages  immediately 
after  the  arrival  of  the  goods  by  the  payment  of  $1,533.55,  as  for  a 
partial  loss.  At  the  time  of  this  settlement  the  plaintiffs  made  a 
verbal  agreement  with  the  company  to  aid  it  in  recovering  against  the 
defendant,  and  the  action  was  brought  in  the  plaintiffs'  name  for  its 
benefit.  The  damaged  goods  were  subsequently  sold  by  the  plaintiffs, 
who  did  not  preserve  any  evidence  which  might  bear  upon  the  question 
of  damages. 

The  auditor  admitted  in  evidence,  against  the  objection  of  the  de- 
fendant, a  written  report  to  the  insurance  company  by  an  appraiser, 
since  deceased,  who  had  been  in  its  employ  for  the  survey  and  appraise- 
ment of  losses  for  about  eleven  years,  and  who  was  ordered  by  the 


726  BR.VDFORD   V.  CUXARD  STEAMSHIP  CO.  [CIIAP.   YI. 

compan}'  to  survej'^  and  estimate  the  damage  to  the  plaintiffs'  goods. 
The  report  was  made  in  the  regular  course  of  his  employment,  and 
purported  to  estimate  the  percentage  of  damage  to  the  invoice  value 
of  the  injured  goods.  It  was  made  \)y  liim  after  a  personal  examination 
of  the  goods,  and  was  accepted  as  correct  by  the  insurance  company, 
M'hich  at  once  paid  the  plaintiffs  in  settlement  $1,533.55.  The  auditor, 
relying  upon  the  appraiser's  report  alone,  found  and  reported  that  the 
plaintiffs  were  entitled  to  recover  the  sum  of  $1,345.45,  -with,  interest 
from  the  date  of  the  WTit. 

The  defendant  requested  the  judge  to  rule  that  the  appraiser's  re- 
port was  inadmissible  in  evidence,  and  that  there  was  in  the  auditor's 
report  no  admissible  evidence  of  the  amount  of  damage,  and  that  the 
plaintiffs  could  recover  only  nominal  damages.  The  judge  ruled  that 
the  appraiser's  report  was  inadmissible;  that  there  was,  however,  in 
the  facts  reported  by  the  auditor,  evidence  sufficient  to  authorize  a 
finding  of  substantial  damages,  and  found  for  the  plaintiffs  in  the  sum 
of  $500. 

If  there  was  admissible  evidence  in  the  facts  reported  by  the  auditor 
sufficient  to  support  the  finding,  and  the  ruling  excluding  the  appraiser's 
report  was  right,  then  judgment  was  to  be  entered  for  the  plaintiffs 
upon  the  finding  for  $500,  with  interest ;  if  the  judge  erred  in  excluding 
the  appraiser's  report,  then  judgment  was  to  be  entered  on  the  auditor's 
report;  if  the  judge  was  correct  in  the  ruling  excluding  the  appraiser's 
report,  and  erred  in  ruling  that  there  was  evidence  sufficient  to  support 
a  finding  of  damage  to  the  amount  of  $500,  then  the  verdict  was  to  be 
set  aside,  and  judgment  was  to  be  entered  for  the  plaintiffs  for  the 
sum  of  one  dollar. 

Holmes,  J.  1.  If  the  plaintiffs  had  no  better  e\adence  of  the 
amount  of  damage  suffered  by  their  goods  than  the"  report  of  an  ap- 
praiser who  settled  the  sum  to  be  paid  by  the  insurers,  the  want  of  it 
was  due,  not  to  the  nature  and  necessities  of  the  case,  but  to  their 
own  neglect.  The  report  would  not  have  been  admissible  if  the  ap- 
praiser had  been  alive,  and  could  have  been  called  as  a  witness.  Kafer 
V.  Harlow,  5  Allen,  348.  Adams  v.  Wheeler,  97  Mass.  67.  Leighton  i'. 
Brown,  98  Mass.  515.  In  our  opinion,  the  fact  that  he  was  dead  did 
not  make  it  so.  Assuming  for  the  purposes  of  the  case  that  the  report 
was  in  other  respects  within  the  exception  to  the  rule  against  hearsay, 
and  that  it  would  have  been  admissible  to  prove  that  the  appraiser 
did  estimate  the  damage,  if  that  fact  had  been  material,  (Kennedy  v. 
Doyle,  10  Allen,  161;  Polini  v.  Gray,  12  Ch.  D.  411,)  or  even  to  prove 
what  his  estimate  was,  his  estimate,  however  proved,  was  not  admissible 
to  show  the  amount  of  damage. 

No  doubt  the  actual  amount  of  damage  expressed  in  dollars  is  theo- 
retically certain,  and  is  a  fact.  But  it  is  a  fact  which  neither  can  be 
observed  directly  by  the  senses,  "when  the  only  question  is  of  the 
honesty  of  the  observer  who  makes  the  entry,  nor  can  be  deduced 


SECT.  III.]  RICE  V.  RICE.  727 

from  the  facts  directly  observed  by  simple  mathematical  computation, 
without  assuming  other  facts  not  the  subject  of  direct  observation." 
Walker  v.  Curtis,  116  Mass.  98.  What  a  particular  man  will  think  the 
amount  of  damage  may  differ  widely  from  the  actual  amount,  and, 
as  experience  shows,  is  likely  to  differ  from  the  opinion  of  others,  be- 
cause it  will  depend  not  only  upon  what  he  sees,  but  upon  a  number 
of  other  facts  which  he  arrives  at  by  inexact  and  undisclosed  methods. 
An  opinion  upon  such  a  question,  however  honestly  formed  and  by 
however  competent  a  man,  is  too  remote  from  the  indisputable  data 
of  the  senses  to  be  admitted  without  being  subjected  to  cross-examina- 
tion. See  Wright  v.  Tatham,  4  Bmg.  N.  C.  489,  508,  528;  Abel  v.  Fitch, 
20  Conn.  90,  96. 

2.  The  goods  were  dress  goods.  It  appears  that  all  the  contents  of 
three  cases,  worth  not  less  than  sixteen  hundred  dollars,  and  varying 
proportions  of  them  in  three  other  cases,  were  damaged  by  salt  water 
and  soda  ash.  We  cannot  say  that  a  jury  would  not  be  warranted  in 
finding,  as  a  matter  of  common  experience,  that  damage  of  such  a 
nature  to  such  goods  could  not  be  less  than  five  hundred  dollars,  or 
somewhat  under  a  third  of  the  value  of  those  goods  which  were  all 
soaked  with  the  alkali. 

Judgment  for  the  plaintiffs  for  five  hundred  dollars. 


RICE  V.  RICE. 
Supreme  Court  of  Michigan,  1895. 

[Reported  104  Mich.  371.] 

Grant,  J.  Plaintiff  recovered  verdict  and  judgment  against  the 
defendant,  her  father-in-law,  for  the  alienation  of  her  husband's 
affections.  .  .  . 

The  defendant  requested  the  court  to  instruct  the  jury  that  there 
was  no  testimony  entitling  the  plaintiff  to  recover  more  than  nominal 
damages,  and  that  there  were  no  facts  upon  which  they  could  deter- 
mine what,  if  any,  loss  she  had  sustained,  either  of  the  society,  assist- 
ance, or  support  of  her  husband.  This  request,  as  a  whole,  was  prop- 
erly refused,  because  it  left  out  entirely  the  damages  resulting  from 
mental  anguish,  mortification,  and  injured  feelings.  In  those  actions 
where  damages  may  be  awarded  for  these  and  for  loss  of  society,  the 
amount  of  damages  lies  in  the  sound  discretion  of  the  jury.  They  are 
not  capable  of  accurate  measurement,  and  it  is  not  necessary  to  in- 
troduce anv  evidence  of  value.  When  the  iurv  have  before  them  the 
social  standing  and  character  of  the  parties,  and  the  circumstances 
surrounding  the  wrong  done,  they  have  all  that  is  proper  and  neces- 
sary upon  which  to  find  a  verdict.    Had  the  defendant  requested  the 


BROWN  V.  ^YHITE. 
Supreme  Court  of  Pennsylvania,  19d2. 

[Reported  202  Pa.  297.] 

Trespass  to  recover  damages  for  personal  injuries. 

Mestrezat,  J.  .  .  .  The  ninth  and  fifteenth  assignments  allege 
error  by  the  court  in  holding  that  the  plaintiff  was  entitled  to  recover 
damages  for  expenses  incurred  for  medical  ser^^ces  rendered  by  her 
physicians.  There  was  no  evidence  5ho^^^ng  the  amount  of  money  ex- 
pended for  these  ser^'ices,  nor  what  the  ser\ices  were  reasonably'  worth. 
The  learned  trial  judge,  however,  held  that  in  estimating  the  damages 
the  jury  should  allow  for  the  direct  expenses  incurred  by  the  plaintiff 
by  reason  of  the  injury,  and  instructed  the  jury  that  "the  mere  fact 
that  it  does  not  appear  from  the  evidence  that  she  has  not  paid  her 
medical  aid  will  not  prevent  her  from  recovering  in  this  case  for  what 
would  reasonably  compensate  her  physicians."  It  is  quite  true  as  the 
learned  judge  suggests,  that  the  fact  that  the  plaintiff  had  not  paid  her 
physician  would  not  prevent  her  recovering  the  \alue  of  his  services. 
But  that  is  not  the  question.  In  the  absence  of  any  evidence  of  the 
value  of  such  services  or  of  what  they  are  reasonably  worth,  was  the 
plaintiff  entitled  to  recover  anything  on  account  thereof?  It  seems  to 
us  rather  singular  that  when  the  physicians  who  rendered  these  serv- 
ices were  on  the  witness  stand  and  detailed  the  character  and  extent 
of  their  ser\ices,  they  were  not  interrogated  as  to  their  value.  It  is 
contended  by  the  learned  counsel  for  the  plaintiff  that  in  the  light  of 


I 


728  BRO"V\'N  I'.  WHITE.  [CHAP.  VI. 

court  to  instruct  the  jury  that  there  was  no  evidence  upon  which  they 
could  find  a  verdict  for  loss  of  support  and  maintenance,  it  would  have 
been  error  to  refuse  it,  because  there  was  no  evidence  of  the  \alue  of 
such  support.    The  sole  e^•idence  was  the  fact  that  they  lived  together  ^ 

for  six  months  in  a  house  owned  by  defendant.    The  court  instructed  ' 

them  that  she  was  entitled  to  recover  for  mental  anguish  and  suffer- 
ing, mortification  and  embarrassment,  for  the  loss  of  her  husband's  ' 
society,  and  for  the  loss  of  his  support  and  maintenance.  It  is  true 
that  the  court  said  to  them  that  "  all  these  elements  of  damage,  except 
the  loss  of  support  and  maintenance,  are  such  tliat  it  is  not  possible 
to  figure  them  out  on  any  mathematical  basis;"  but  he  did  not  in- 
struct them  that  there  was  no  basis  afforded  by  the  e\ddence  upon 
which  they  could  determine  the  damages  resulting  from  loss  of  sup- 
port and  maintenance.  The  verdict  ($3,000)  was  large,  considering 
the  condition  of  the  parties,  and  we  cannot  say  that  the  jury  did  not 
consider  and  allow  for  the  loss  of  support. 

The  judgment  mtist  he  set  aside,  and  a  new  trial  ordered. 


SECT.  III.]  GREGORY  V.  OAKLAND  MOTOR  CAR  CO.  729 

their  testimony  "the  average  jury  from  their  own  experience  could 
estimate  with  considerable  accuracy  what  would  be  reasonable  com- 
pensation." We  cannot  assent  to  this  proposition.  On  the  contrary 
the  average  juryman  is  not  a  professional  man,  and  is  not  presumed 
to  know  the  value  of  such  services.  What  would  have  been  reasonable 
compensation  for  the  medical  services  rendered  the  plaintiff  might 
have  been  shown  by  the  physicians  who  attended  her  or  })y  others  who 
were  acquainted  with  the  value  of  similar  services  in  the  community  in 
which  they  were  rendered.  It  was  incumbent  on  the  plaintiff  before 
she  could  recover  from  the  defendant  compensation  for  medical  aid  to 
furnish  the  jury  evidence  from  which  they  could  determine  what  had 
been  paid  for  such  services  or  such  amounts  as  the  services  were 
reasonably  worth.  Failing  in  this,  there  was  no  basis  on  which  the 
jury  could  estimate  or  intelligently  determine  this  element  of  the 
plaintiff's  damages.  A  verdict  should  be  supported  by  legal  evidence, 
otherwise  it  is  the  result  of  the  whim,  caprice  or  guess  of  the  jury. 
This  is  not  permissible  under  our  jury  system. 

It  follows  that  the  ninth  and  fifteenth  assignments  of  error  must  be 
sustained.  The  judgment  is  reversed  and  a  venire  facias  de  novo  is 
awarded. 


GREGORY  V.  OAKLAND  MOTOR  CAR  COMPANY. 

SuPKEME  Court  of  Michigan,  1914. 

[Reported  181  Mich.  101.] 

Stone,  J.  This  is  an  action  of  trespass  on  the  case  to  recover  damages 
against  the  defendant  for  injuries  to  plaintiff's  horse  and  buggy,  also 
for  expenses  incurred  by  him  for  medical  attendance  upon,  and  for  loss 
of  the  services,  comfort,  fellowship,  and  society  of  his  wife,  by  reason 
of  the  negligence  of  an  employee  of  the  defendant.  .  .  . 

It  is  the  further  contention  of  appellant  that,  there  being  no  e\n- 
dence  as  to  the  value  of  the  services  of  plaintiff's  wafe,  it  was  error  for 
the  court  to  allow  the  jury  to  fix  damages  for  loss  of  the  wife's  services 
according  to  their  "good  judgment  and  common  sense." 

There  was  no  motion  for  a  new  trial,  and  there  does  not  seem  to  be 
any  specific  claim  on  the  part  of  appellant  that  the  damages  were  ex- 
cessive. But  counsel  claim  there  was  no  basis  for  the  verdict  of  the 
jury,  in  so  far  as  the  value  of  the  loss  of  the  services  is  concerned. 

Counsel  for  appellant  have  called  our  attention  to  Nelson  v.  Rail- 
way Co.,  104  Mich.  582  (62  N.  W.  993).  There  the  husband  brought 
a  suit  under  the  "Death  Act"  to  recover  damages  for  the  negligent 
killing  of  his  wife.  We  do  not  think  that  this  and  kindred  cases  are 
controlling  of  the  question  here,  for  in  those  statutory  actions  the 


730  GREGORY  V.  OAKLAND  MOTOR  CAR  CO.  [CHAP.  VI. 

damages  recoverable  are  the  pecuniary  loss  only,  and  nothing  for  loss 
of  companionship  and  society.  It  has  been  held  in  other  States  that, 
in  cases  like  the  instant  case,  there  need  not  be  evidence  of  the  value 
or  amount  of  the  pecuniary  loss. 

In  Denver,  etc.,  Tramway  Co.  v.  Riley,  14  Colo.  App.  132  (59  Pac. 
476),  the  court  of  appeals  of  Colorado  discussed  this  question,  and 
there  said : 

"There  is  some  discussion  of  the  question  of  the  kind  and  amount 
of  proof  which  is  necessary,  in  a  case  like  this,  to  enable  a  husband  to 
recover  for  the  loss  of  the  services,  companionship,  and  society  of  his 
wife.  What  these  were  worth  in  money  was  not  shown,  and,  upon  a 
little  reflection,  it  is  apparent  that  it  could  not  be.  The  companion- 
ship and  society  of  a  wife  are  not  articles  of  commerce.  They  cannot 
be  weighed  or  measured;  they  are  not  bought  and  sold,  and  no  expert 
is  competent  to  testify'  to  their  value.  The  consideration  upon  which 
they  are  bestowed  is  not  pecuniary.  Yet  the  husband  is  entitled  to 
compensation  in  money  for  their  loss,  and  the  amount  of  that  com- 
pensation is  to  be  determined  by  the  jury,  not  from  evidence  of  value, 
but  from  their  own  observation,  experience,  and  knowledge,  con- 
scientiously applied  to  the  facts  and  circumstances  of  the  case.  So 
also  in  relation  to  the  ser\nces  of  the  wife.  The  wdfe  does  not  occupy 
the  position  of  a  servant,  and  her  ser\'ices  to  her  husband  are  not 
those  of  a  servant.  She  makes  his  home  cheerful  and  inviting,  and 
ministers  to  his  happiness  in  a  multitude  of  ways  outside  of  the  drudgery 
of  household  labor.  All  the  work  of  the  house  may  be  done  by  hired 
employees,  and  her  services  still  give  character  to  the  home.  They 
are  not  rendered  in  accordance  with  set  rules;  they  are  not  repeated 
in  regular  order  from  day  to  day.  They  have  their  source  in  the 
thoughtfulness  of  the  wife,  and  her  regard  for  her  husband,  and  no 
witness  is  qualified  to  define  them,  or  reduce  them  to  a  list,  or  say  what 
they  are  worth.  So  that  their  value  must  also  be  estimated  by  the 
jury.  Furnish  v.  Railway  Co.,  102  Mo.  669  (15  S.  W.  315,  22  Am.  St. 
Rep.  800);  Metropolitan,  etc.,  R.  Co.  v.  Johnson,  91  Ga.  466  (18  S.  E. 
816)." 

In  Metropolitan,  etc.,  R.  Co.  v.  Johnson,  supra,  the  supreme  court 
of  Georgia,  upon  this  subject,  said : 

"  When  the  loss  of  a  wife's  services,  resulting  from  a  personal  injury 
to  her,  is  to  be  compensated  for,  she  is  not  to  be  treated  as  an  ordinary 
serAant  or  as  a  mere  hireling.  Cooley  on  Torts  (2d  ed.),  p.  266; 
Pennsylvania  R.  Co.  v.  Goodman,  62  Pa.  329.  She  sustains  to  her 
husband  and  his  household  a  relation  special  and  peculiar.  Her  place 
cannot  be  supplied;  no  other  is  capable  of  filling  it.  Some  wives  per- 
form manual  lal)or  —  others  do  not;  yet  the  husbands  of  the  latter  no 
less  than  those  of  the  former  would  certainly  be  entitled  to  compensa- 
tion from  wrongdoers  for  causing  inability  to  perform  service.  The 
actual  facts  and  circumstances  of  each  case  should  guide  the  jur\-  in 


SECT.   III.]  MASTERTOK  V.  MOUNT  VERNOX.  731 

estimating  for  themselves,  in  the  hght  of  their  owti  observation  and 
experience  and  to  the  satisfaction  of  their  o^ti  consciences,  the  amount 
which  would  fairly  and  justly  compensate  the  plaintiff  for  his  loss. 
Certainly  some  elements  of  loss,  such  as  manual  labor,  would  be  sub- 
ject to  estimation  by  witnesses ;  and,  if  evidence  of  this  kind  were  pro- 
duced, of  course  the  jury  should  consider  it  together  with  the  other 
facts.  But  what  we  hold  distinctly  is  that  there  need  be  no  direct  or 
express  evidence  of  the  value  of  the  wife's  ser\'ices,  either  by  the  day, 
week,  month,  or  any  other  period  of  time,  or  of  any  aggregate  sum." 

The  rule  is  stated  in  13  Cyc.  p.  215,  n.  22,  as  follows: 

"There  is  no  need  of  direct  or  express  e\ddence  of  the  value  of  a 
wife's  services,  either  by  the  day,  week,  or  any  other  stated  period,  in 
order  to  entitle  the  husband  to  recover  for  the  loss  thereof,  as  the  rela- 
tion which  she  sustains  to  him  is  a  special  and  peculiar  one,  and  the 
actual  facts  and  circumstances  of  each  case  should  guide  the  jury  in 
estimating  for  themselves,  in  the  light  of  their  owti  observation  and 
experience,  and  to  the  satisfaction  of  their  own  consciences,  the  amoimt 
which  would  fairly  and  justly  compensate  the  husband  for  his  loss"  — 
citing  Kelley  v.  Mayberry  TowTiship,  154  Pa.  440  (26  Atl.  595) ;  Gaines- 
ville, etc.,  R.  Co.  r.'Lacy,  86  Tex.  244  (24  S.  W.  269).  See,  also,  Black 
V.  Raih-oad  Co.,  146  Mich.  568  (109  N.  W.  1052). 

This  last-cited  case  deals  w^th  the  rule  in  actions  for  damages  in- 
vohang  the  death  of  a  minor  child. 

As  was  said  in  Furnish  r.  Railway  Co.,  supra,  referring  to  the  fact 
that  no  evidence  was  offered  of  the  value  of  the  services : 

"To  this  it  may  be  said  that  the  nature  of  the  subject  does  not 
admit  of  direct  proof  of  value  and  that,  when  the  fact  of  loss  of  society 
is  established  by  testimony,  the  assessment  of  reasonable  compensa- 
tion therefor  must  necessarily  be  committed  to  the  sound  discretion 
and  judgment  of  the  triers  of  fact." 

Similar  language  was  used  by  the  court  in  Kelley  r.  Mayberry  Town- 
ship, supra. 

We  are  of  opinion  it  cannot  be  said  in  the  instant  case  that  there 
was  no  basis  upon  which  to  find  a  verdict  for  damages ;  nor  can  we  say 
on  this  record  that  the  damages  were  excessive. 

The  judgment  of  the  circuit  court  is  affirmed. 


MASTERTON   v.  MOUNT  VERNON. 
Court  of  Appeals,  New  York,  1874. 

[Reported  58  N.  Y.  391.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  second  judicial  department,  affirming  a  judgment  in  favor  of 
plaintiff  entered  upon  a  verdict. 


i 

1 

732  MASTERTON  V.  MOUNT  VERNON.  [CHAP.  VI. 

This  action  was  brought  to  recover  damages  for  injuries  received 
by  plaintiff  by  being  thrown  from  his  wagon  in  one  of  the  streets  of 
the  ^'illage  of  INTount  Vernon  called  Fourth  avenue.  The  accident  was 
occasioned  by  the  wagon  sinking  into  a  ditch  or  excavation  made  by 
the  owners  of  lots  upon  said  street,  with  the  consent  of  defendant's 
trustees,  for  the  purpose  of  connecting  their  lots  with  a  sewer  in  the 
street,  and  which  excavation  had  been  imperfectly  filled.  The  further 
facts  appear  sufficiently  in  the  opinion. 

Grover,  J.  ...  I  also  think  the  Judge  erred  in  overruling  the 
defendant's  objection  to  the  following  question:  About  what  had  been 
your  profits,  year  by  year,  in  that  business?  The  plaintiff  had  testified 
that  he  wa6  engaged  in  the  tea  importing  and  jobbing  business,  buying 
and  selling  teas,  and  had  been  for  a  gi'eat  number  of  yeare.  That  he 
had  a  partner  who  attended  to  the  sales,  while  he  made  the  purchases. 
That  in  purchasing  teas  a  high  degree  of  skill  was  necessary,  which  the 
plaintiff'  possessed.  That  the  business  was  extensive.  That  in  con- 
sequence of  the  injury  the  plaintiff  could  not  purchase  teas,  and  there 
was  a  great  falling  off  in  the  business  of  the  firm.  In  Lincoln  v.  Sara- 
toga and  S.  Railroad  Co.  (23  Wend.  425)  it  was  held,  in  an  analogous 
case,  that  the  plaintiff  might  prove  that  he  was  engaged  in  the  dry 
goods  business,  and  its  extent,  but  there  was  no  attempt  to  prove  the 
past  profits  of  the  business,  with  a  view  to  show  what  the  future  would 
be.  Where,  in  such  a  case,  the  plaintiff  has  received  a  fixed  compensa- 
tion for  his  services,  or  his  earnings  can  be  sho^\Tl  with  reasonable 
certainty,  the  proof  is  competent.  (McIntATe  r.  N.  Y.  C.  R.  R.  Co., 
37  N.  Y.  287;  Grant  v.  The  City  of  Brooklyn,  41  Barb.  381.)  In 
Nebraska  City  v.  Campbell,  (2  Black,  590)  it  was  held  that  proof  that 
the  plaintiff  was  a  physician,  and  the  extent  of  his  practice,  was  com- 
petent. Wade  V.  Leroy  (20  How.  [U.  S.]  34)  held  the  same.  In  none 
of  these  cases  is  any  intimation  given  that  proof  may  be  given  as  to 
the  uncertain  future  profits  of  commercial  business,  or  that  the  amount 
of  past  profits  derived  therefrom  may  be  shown,  to  enable  the  jury  to 
conjecture  what  the  future  might  probably  be.  These  profits  depend 
upon  too  many  contingencies,  and  are  altogether  too  uncertain  to 
furnish  any  safe  guide  in  fixing  the  amount  of  damages.  In  Walker  v. 
The  Erie  R.  R.  Co.  (63  Barb.  260)  it  was  held  that  proof  of  the  amount 
of  income  derived  by  the  plaintiff'  for  the  year  preceding  the  injury, 
from  the  practice  of  his  profession  as  a  lawyer,  was  competent.  This 
goes  beyond  the  rule  adopted  in  any  of  the  other  cases,  and  it  certainly 
ought  not  to  be  further  extended.  Whether  proof  of  the  income  de- 
ri\ed  b;\'  a  lawj^er  from  the  past  practice  of  his  profession  is  competent  n 
for  the  purpose  of  authorizing  the  jm-y  to  draw  an  inference  as  to  the 
extent  of  the  loss  sustained  by  inability  to  personally  attend  to  business, 
may,  I  think,  well  be  doubted.  Tliere  is  no  such  uniformity  in  the 
amount  in  different  years,  as  a  general  rule,  as  to  make  such  inference 
reliable.     But  the  profits  of  importing  and  selling  teas  are  still  more 


SECT.  III.]  BRIGHAM  V.  CARLISLE.  733 

uncertain.  In  some  years  they  may  be  large,  and  in  others  attended 
with  loss.  The  plaintiff  had  the  right  to  prove  the  business  in  which 
he  was  engaged,  its  extent,  and  the  particular  part  transacted  by  him, 
and,  if  he  could,  the  compensation  usually  paid  to  persons  doing 
such  business  for  others.  These  are  circumstances  the  jury  have 
a  right  to  consider  in  fixing  the  value  of  his  time.  But  they  ought 
not  to  be  permitted  to  speculate  as  to  the  uncertain  profits  of 
commercial  ventures,  in  which  the  plaintiff,  if  uninjured,  would  have 
been  engaged. 

The  judgment  appealed  from  should  be  reversed,  and  a  new  trial 
ordered,  costs  to  abide  the  event. 

All  concur.     Andrews,  J.,  concurs  on  second  ground;  Folger,  J., 
in  result. 

Judgment  reversed. 


BRIGHAJM  V.   CARLISLE. 
Supreme  Court  of  Alabama,  1884.  , 

[Reported  78  Ala.  243.] 

Clopton,  J.  .  .  .  The  material  question  is  the  rrieasure  of  damages. 
The  primary  purpose  of  awarding  damages  is,  actual  compensation 
to  the  party  injured,  whether  by  a  tort,  or  by  breach  of  a  contract; 
though  there  are  exceptional  cases,  in  which  exemplary  or  punitive 
damages  are  allowed.  Owing  to  the  ever-occurring  differences  in  the 
circumstances,  and  in  the  special  conditions  of  the  contracting  parties, 
it  has  been  found  difficult,  if  not  impossible,  to  lay  down  general  and 
definite  rules  as  to  the  measure  of  damages,  applicable  to  all  cases  of 
a  class.  From  a  misconstruction  of  expressions  of  eminent  jurists, 
not  sufficiently  guarded  for  general  use,  but  adapted  to  the  case  in 
hand,  the  applications  of  rules,  commonly  recognized,  have  been  as 
various  as  the  cases.  The  proposition,  that  all  damages  are  recover- 
able which  are  in  the  contemplation  of  the  parties,  is  not  strictly  cor- 
rect. The  primary  rules  are,  the  damages  must  be  the  natural  and 
proximate  results  of  the  wrong  complained  of,  and  must  not  be  merely 
speculative,  or  conjectural.  These  must  concur,  though  founded  on 
different  principles,  and  are  distinct  and  independent  of  each  other. 
The  law  presumes  that  a  party  foresees  the  natural  and  proximate 
results  of  a  breach  of  his  contract  or  tort,  and  hence  these  are  pre- 
sumed to  be  in  his  legal  contemplation.  F'or  such  damages,  as  a  general 
rule,  the  party  at  fault  is  liable. 

But  there  are  damages,  which  are  in  the  contemplation  of  the  par- 
ties at  the  time  of  making  the  contract,  and  are  the  natural  and  proxi- 
mate results  of  its  breach,  which  are  not  recoverable.     The  parties 


734  BRIGHAM  V.  CARLISLE.  [CHAP.  VI. 

must  necessarily  contemplate  the  loss  of  profits  as  the  direct  and  neces- 
sary consequence  of  the  breach  of  a  contract,  and  yet  all  profits  are 
not  within  the  scope  of  recoverable  damages.  There  are  numerous 
cases,  however,  in  which  profits  constitute,  not  only  an  element,  but 
the  measure  of  damage.  While  the  line  of  demarcation  is  often  dim 
and  shadowy,  the  distinctive  features  consist  in  the  nature  and  char- 
acter of  the  profits.  When  they  form  an  elemental  constituent  of  the 
contract,  their  loss  the  natural  result  of  its  breach,  and  the  amount 
can  be  estimated  with  reasonable  certaint}',  such  certainty  as  satisfies 
the  mind  of  a  prudent  and  impartial  person,  they  are  allowed.  The 
requisite  to  their  allowance  is  some  standard,  as  regular  market  values, 
or  other  established  data,  by  reference  to  which  the  amount  may  be 
satisfactorily  ascertained.  Illustrations  of  profits  recoverable  are 
found  in  cases  of  sales  of  personal  property  at  a  fixed  price,  evictions 
of  tenants  by  landlords,  articles  of  partnership,  and  many  commercial 
contracts. 

On  the  other  hand,  "mere  speculative  profits,  such  as  might  be 
conjectured  would  be  the  probable  result  of  an  adventure,  defeated  by 
the  breach  of  a  contract,  the  gains  from  which  are  entirely  conjectural, 
and  with  respect  to  which  no  means  exist  of  ascertaining  even  approxi- 
mately the  probable  results,  can  not,  under  any  circumstances,  be 
brought  within  the  range  of  recoverable  damages."  —  1  Suth.  on  Dam. 
141.  Profits  speculative,  conjectural  or  remote,  are  not,  generally, 
regarded  as  an  element  in  estimating  the  damages.  In  Pollock  v. 
Gantt,  69  Ala.  373,  it  is  said :  "  What  are  termed  speculative  damages  — 
that  is  possible,  or  even  probable  gains,  that  it  is  claimed  would  have 
been  realized,  but  for  the  tortious  act  or  breach  of  contract  charged 
against  a  defendant  —  are  too  remote,  and  can  not  be  recovered." 
The  same  rule  has  been  repeatedly  asserted  by  this  court.  —  Culver  v. 
Hill,  68  Ala.  66;  Higgins  v.  Mansfield,  62  Ala.  267;  Burton  v.  Holley, 
29  Ala.  318;  White  v.  Miller,  71  N.  Y.  118;  French  v.  Ramge,  2  Neb. 
254;  2  Smith's  Lead.  Cases,  574;  Olmstead  v.  Burke,  25  111.  86.  The 
two  following  cases  may  serve  to  illustrate  the  difference  between 
profits  recoverable  and  not  recoverable.  In  J^tna  Life  Ins.  Co.  v. 
Noxson,  84  Ind.  347,  an  insurance  agent,  who  had  been  discharged 
without  cause  before  the  expiration  of  his  contract,  was  allowed  to 
include  in  his  recovery  the  probable  value  of  renewals  on  policies  pre- 
viously obtained  by  him,  upon  which  future  premiums  would,  in  the 
usual  course  of  business,  be  received  by  the  company,  on  the  ground, 
that  the  amount  of  compensation,  due  on  such  renewals,  can  be  ascer- 
tained with  requisite  certainty  by  the  use  of  actuary's  life-tables  and 
comparisons,  and  that  the  basis  of  the  right  to  damages  existed,  and 
was  not  to  be  built  in  the  future.  In  Lewis  v.  Atlas  Mu.  Ins.  Co.,  61 
Mq.  534,  wiiich  is  cited  with  approval  in  the  other  case,  the  same  rule 
as  to  the  probable  value  of  renewals  w^as  held,  but  it  was  also  held, 
that  an  estimate  of  the  probable  earnings  of  the  agent  thereafter,  de- 


SECT.  III.]  BRIGHAJVI  V.  CARLISLE.  735 

rived  from  proof  of  the  amount  of  his  collections  and  commissions 
before  the  breach  of  the  contract,  in  the  absence  of  other  proof,  is  too 
speculative  to  be  admissible. 

Profits  are  not  excluded  from  recovery,  because  they  are  profits; 
but,  when  excluded,  it  is  on  the  ground  that  there  are  no  criteria  by 
which  to  estimate  the  amount  with  the  certainty  on  which  the  ad- 
judications of  courts,  and  the  findings  of  juries  should  be  based.  The 
amount  is  not  susceptible  of  proof.  In  3  Suth.  on  Dam.  157,  the 
author  discriminatingly  observes:  "When  it  is  advisedly  said,  that 
profits  are  uncertain  and  speculative,  and  can  not  be  recovered,  when 
there  is  an  alleged  loss  of  them,  it  is  not  meant  that  profits  are  not  re- 
coverable merely  because  they  are  such,  nor  because  profits  are  neces- 
sarily speculative,  contingent,  and  too  uncertain  to  be  proved;  but 
they  are  rejected  when  they  are  so;  and  it  is  probable  that  the  inquiry 
for  them  has  been  generally  proposed  when  it  must  end  in  fruitless 
imcertainty;  and  therefore,  it  is  more  a  general  truth  than  a  general 
principle,  that  a  loss  of  profits  is  no  ground  on  which  damages  can  be 
given."  When  not  allowed  because  speculative,  contingent  and  un- 
certain, their  exclusion  is  founded,  by  some  on  the  ground  of  remote- 
ness, and  by  others,  on  the  presumption  that  they  are  not  in  the  legal 
contemplation  of  the  parties. 

The  plaintiff,  by  the  contract,  undertook  the  business  of  travelling 
salesman  for  the  defendants.  The  amount  of  his  commissions  de- 
pended, not  merely  on  the  number  and  amounts  of  sales  he  might 
make,  but  also  on  the  proportional  quantity  of  the  two  classes  of  goods 
sold,  his  commissions  being  different  on  each.  The  number  and 
amounts  of  sales  depended  on  many  contingencies  —  the  state  of 
trade,  the  demand  for  such  goods,  their  suitableness  to  the  different 
markets,  the  fluctuations  of  business,  the  skill,  energy  and  industry 
with  which  he  prosecuted  the  business,  the  time  employed  in  effect- 
ing different  sales,  and  upon  the  acceptance  of  his  sales  by  the  defend- 
ants. There  are  no  criteria,  no  established  data,  by  reference  to  which 
the  profits  are  capable  of  any  estimate.  They  are  purely  speculative 
and  conjectural.  Besides,  the  evidence  is  the  mere  opinion  and  con- 
jecture of  the  plaintiff,  without  giving  any  facts  on  which  it  was  based. 
The  bare  statement,  uncorroborated  by  any  facts,  and  without  a  basis, 
that  "the  reasonable  sales  would  have  been  fifteen  thousand  dollars, 
and  that  the  net  profits  on  that  amount  of  sales  would  have  been  four 
hundred  and  fifty  dollars,"  is  too  conjectural  to  be  admissible.  — 
Washbxirn  v.  Hubbard,  10  Lans.  11. 

Reversed  and  remanded. 


736 


HICHHORN  MACK  &  CO.  V.  BR.U)LEY. 


[CILA.P.  VI. 


HICHHORN  MACK  &  CO.   v.  BRADLEY. 
Supreme  Court  of  Iowa,  1902. 

[Reported  117  la.  130.] 

McClain,  -T.  It  is  alleged  in  defendant's  counterclaim,  and  there  is 
evidence  tending  to  show,  that  in  January,  1897,  defendant  made  an 
oral  contract  with  one  Glaspell,  acting  as  plaintiffs'  agent,  by  which 
defendant  acquired  from  plaintiffs  the  exclusive  right  to  sell  in  certain 
territory  in  Iowa  a  brand  of  cigars  known  as  the  "Tom  Moore,"  manu- 
factured by  plaintiffs.  In  this  contract  it  was  contemplated  and  un- 
derstood that  defendant  was  to  incur  expense  in  introducing  the  cigar 
to  the  trade  within  the  territory  given  to  him,  and  it  was  agreed,  that 
plaintiffs  should  furnish  such  cigars  of  this  brand  as  defendant  should 
order  as  long  as  defendant  continued  to  render  the  best  service  in  his 
power  in  pushing  the  sale  of  said  cigars.  About  July  1,  1898,  plaintiffs 
refused  to  longer  furnish  cigars  to  defendant;  and  defendant  was  un- 
able, therefore,  to  make  further  sales  thereof  to  his  customers,  although 
he  had,  by  introducing  the  cigar  to  the  trade,  at  some  expense,  built 
up  a  demand  for  them.  .  .   . 

The  chief  contention,  however,  of  counsel  for  appellants,  is  that  the 
damages  which  defendant  attempted  to  show  were  too  remote  and 
speculative  to  be  considered.  Evidence  was  admitted,  over  plaintiffs' 
objection,  showing  the  number  of  Tom  Moore  cigars  sold  by  defendant 
in  his  territory  up  to  the  time  when  plaintiffs  refused  to  furnish  him 
any  more  cigars  under  the  contract,  and  the  number  of  the  same  kind 
of  cigars  sold  in  the  same  territory  by  the  jobber  to  whom  the  territory 
was  given  by  plaintiffs  after  the  contract  with  defendant  was  revoked. 
It  may  be  of  assistance  in  considering  this  evidence  to  say  here  that 
defendant,  by  his  pleadings,  limited  his  right  to  recover  to  the  damages 
accrued  up  to  the  time  of  trial,  and  also  that  the  sales  in  this  territory 
subsequent  to  the  revocation  of  defendant's  contract  were  proven  by 
the  testimony  of  a  witness  who  had  been  a  traveling  salesman  for  de- 
fendant in  the  sale  of  the  cigars  under  the  contract,  and  who,  after  its 
revocation,  became  salesman  for  the  jobber  who  acquired  from  plain- 
tiffs the  right  to  sell  the  cigar  in  the  same  territory.  The  court  in- 
structed that,  if  the  jurors  found  defendant  to  be  entitled  to  recover 
damages  under  his  counterclaim,  then,  in  arriving  at  the  amount  of 
damage,  they  should  consider  the  evndence  above  referred  to,  in  con- 
nection with  all  evidence  relating  to  the  price  at  which  the  cigars  were 
to  have  been  furnished  to  defendant  under  the  contract,  and  the  price 
at  which  they  were  to  be  resold,  and  of  evidence  as  to  what  it  would 
cost  defendant  to  have  handled  and  sold  said  cigars  in  said  territory, 
and,  from  all  the  evidence  relating  to  these  matters,  determined  how 


SECT.  III.]  HICHHORX  MACK  &   CO.  r.  BR.\DLEY.  737 

much,  if  anything,  said  defendant  had  been  damaged  by  the  breach  of 
the  contract.  The  jurors  were  also  told  that,  m  ascertaining  the  amount 
of  damage,  they  should  determine  as  nearly  as  possible  the  quantity 
of  cigars  defendant  would  have  sold  in  said  territory  up  to  that  time, 
and  the  profits  which  would  have  accrued  from  such  sale,  and  that,  in 
determining  the  quantity  of  cigars  which  defendant  would  have  sold, 
they  might  consider  the  numl)er  sold  prior  to  the  breach  of  the  con- 
tract, the  state  and  condition  of  the  trade,  the  number  of  towns  in  the 
territory,  and  the  demands  of  the  trade  in  said  territory  for  the  Tom 
Moore  brand  of  cigars.  And  the  court  refused  to  direct  the  jurors, 
as  requested  by  plaintiffs,  that  they  should  not  take  into  account  or 
include  in  their  verdict  any  sums  for  profits  upon  cigars  which  de- 
fendant might  have  sold,  if  his  right  to  sell  the  same  had  not  been 
taken  from  him,  or  any  other  future  speculative  profits.  There  is, 
perhaps,  no  more  perplexing  question  in  the  law  than  that  relating  to 
the  measure  of  damages  for  breach  of  contract  invohoBg  contemplated 
profits  to  be  derived  from  the  performance  of  the  contract.  Here  we 
are  not  concerned  with  the  question  which  sometimes  arises,  whether 
profits  are  within  the  contemplation  of  the  parties,  according  to  the 
rule  of  Hadley  v.  Baxendale,  9  Exch.  341,  which  has  been  frequently 
cited,  and  has  been  approved  by  this,  court  in  Mihills  IVIanufacturing 
Co.  V.  Day,  50  Iowa,  250,  and  other  cases.  It  is  perfectly  clear  in  this 
case  that  the  profits  to  be  derived  from  the  sale  of  these  cigars  consti- 
tuted the  only  consideration  to  the  defendant  for  entering  into  the 
contract,  and  that  the  loss  of  such  profits  was  in  the  contemplation  of 
the  parties  at  the  time  the  contract  was  made  as  a  direct  consequence 
which  would  result  from  its  breach.  And  it  is  well  settled  that  when 
the  loss  of  future  profits  is  thus  in  the  contemplation  of  the  parties, 
and  does  directly  result  from  the  breach  of  the  contract,  the  amount 
of  profits  thus  lost  may  be  recovered.  In  Trigg  v.  Clay,  88  Va.  320, 
335  (13  S.  E.  Rep.  434,  435^  29.  Am.  St.  Rep.  723),  this  pertinent 
language  is  used,  which  we  think  is  a  correct  exposition  of  the  law: 
"It  has  often  been  held  that  profits  which  are  the  direct  and  imme- 
diate fruits  of  the  contract  are  recoverable.  There  are  many  cases  in 
which  the  profit  to  be  made  l)y  the  bargain  is  the  only  thing  purchased, 
and  in  such  cases  the  amount  of  such  profit  is  strictly  the  measure  of 
damages.  Wood's  Mayne,  Damages  p.  82.  It  has  been  held  that, 
when  the  defendant  refused  to  allow  the  contracts  to  V)e  executed,  the 
jury  should  allow  the  plaintiffs  as  much  as  the  contract  would  have 
benefited  them.  Profits  or  advantages  which  are  the  direct  and  im- 
mediate fruits  of  the  contract  entered  into  between  the  parties  are  part 
and  parcel  of  the  contract  itself,  entering  into  and  constituting  a  por- 
tion of  its  very  elements,  —  something  stipulated  for,  and  the  right 
to  the  enjoyment  of  which  is  just  as  clear  and  plain  as  to  the  fulfill- 
ment of  any  other  stipulation.  They  are  presumed  to  have  been  taken 
into  consideration  and  deliberated  upon  before  the  contract  was  made. 


738  HICHHORN  MACK  &  CO.  V.  BRADLEY.  [CHAP.  VT. 

and  formed,  perhaps,  the  only  inducement  to  the  arrangement." 
"  Profits  are  not  excluded  from  recovery  because  they  are  profits,  but, 
when  excluded,  it  is  on  the  ground  that  there  are  no  criteria  by  which 
to  estimate  the  amount  with  the  certainty  on  which  the  adjudications 
of  courts  and  the  findings  of  juries  should  be  based."  Brigham  v. 
Carlisle,  78  Ala.  243  (56  Am.  Rep.  28).  And  in  this  case  the  court 
quotes  with  approval  the  following  language  found  in  3  Sutherland, 
Damages,  157:  "When  it  is  advisedly  said  that  profits  are  uncertain 
and  speculative,  and  cannot  be  recovered  when  there  is  an  alleged  loss 
of  them,  it  is  not  meant  that  profits  are  not  recoverable  merely  because 
they  are  such,  nor  because  they  are  necessarily  speculative,  contingent, 
and  too  uncertain  to  be  proved,  but  they  are  rejected  when  they  are 
so,  and  it  is  probable  that  the  inquiry  for  them  has  been  generally 
proposed  when  it  must  end  in  fruitless  uncertainty;  and  therefore  it  is 
more  a  general  truth  than  a  general  principle  that  a  loss  of  profits  is 
no  ground  on  which  damages  can  be  given."  The  distinction  between 
an  erroneous  rule  of  law,  sometimes  assumed,  that  prospective  profits 
are  not  to  be  considered  in  measuring  damages  for  breach  of  contract, 
and  the  correct  proposition,  that  remote  and  speculative  profits  can- 
not be  shown,  for  the  reason  that  no  sufficient  evidence  thereof  is 
attainable,  is  thus  stated  in  U.  S.  v.  Behan,  110  U.  S.  338,  344  (4  Sup. 
Ct.  Rep.  81,  83,  28  L.  Ed.  168) :  "The  prima  facie  measure  of  damages 
for  the  breach  of  a  contract  is  the  amount  of  the  loss  which  the  injured 
party  has  sustained  thereby.  If  the  breach  consists  in  preventing  the 
performance  of  the  contract,  without  the  fault  of  the  other  party,  who 
is  willing  to  perform  it,  the  loss  of  the  latter  will  consist  of  two  distinct 
items  or  grounds  of  damage,  namely:  First,  what  he  has  already  ex- 
pended towards  performance,  less  the  value  of  materials  on  hand; 
secondly,  the  profits  that  he  would  realize  by  performing  the  whole 
contract.  The  second  item  —  profits  —  cannot  always  be  recovered. 
They  may  be  too  remote  and  speculative  in  their  character,  and  there- 
fore incapable  of  that  clear  and  direct  prooi  which  the  law  requires. 
But  when,  in  the  language  of  Chief  Justice  Nelson  in  the  case  of  Mas- 
terton  v.  Mayor,  etc.,  7  Hill,  69  (42  Am.  Dec.  38),  they  are  the  'direct 
and  immediate  fruits  of  the  contract '  they  are  free  from  this  objection. 
They  are  then  '  part  and  parcel  of  the  contract  itself,  entering  into  and 
constituting  a  portion  of  its  very  elements,  —  something  stipulated 
for,  the  right  to  the  enjoyment  of  which  is  just  as  clear  and  plain  as  to 
the  fulfillment  of  any  other  stipulation.'  Still,  in  order  to  furnish  a 
ground  of  recovery  in  damages,  they  must  be  proved.  If  not  proved, 
or  if  they  are  of  such  a  remote  and  speculative  character  that  they 
cannot  be  legally  proved,  the  party  is  confined  to  his  loss  of  actual 
outlay  and  expense."  And  see  Howard  v.  Manufacturing  Co.,  139 
U.  S.^99  (11  Supt.  Ct.  Rep.  500,  35  L.  Ed.  147);  Anvil  Mining  Co.  v. 
Humble,  153  U.  S.  540  (14  Sup.  Ct.  Rep.  876,  38  L.  Ed.  814).  That 
the  profit  or  advantage  which  a  party  expected  to  derive  from  the 


I 


SECT.   III.]  HICHHORX  MACK  &   CO.  V.  BRADLEY.  739 

performance  of  the  contract  may  be  so  speculative  and  uncertain  as 
not  to  be  capable  of  proof  as  the  basis  for  the  recovery  of  damages,  is 
well  settled.  Bank  v.  Thurman,  69  Iowa,  693;  Bernstein  v.  Meech, 
130  N.  Y.  354  (29  N.  E.  Rep.  255).  And  on  the  principle  that  specula- 
tive profits  are  not  deemed  to  have  been  wnthin  the  contemplation  of 
the  parties,  where  there  is  some  other  more  substantial  basis  on  which 
to  reckon  the  damages  for  breach  of  contract,  it  has  been  generally 
held  that  where  the  contract  was  as  to  the  completion  of  a  building  or 
boat,  or  for  the  use  of  land  or  machinery,  or  the  like,  the  rental  value 
of  the  use  of  which  the  party  was  deprived  should  be  taken  as  the 
measure  of  his  damage,  and  that  he  could  not  substitute  therefor  or 
include  therein  profits  which  he  might  have  made  in  such  use.  Griffin 
V.  Colver,  16  N.  Y.  489  (69  Am.  Dec.  718);  Alexander  v.  Bishop,  59 
Iowa,  572;  Novelty  Iron  Works  v.  Capital  City  Oatmeal  Co.,  88  Iowa, 
524;  Aber  v.  Bratton,  60  Mich.  357  (27  N.  W.  Rep.  564);  City  of 
Chicago  V.  Huenerbein,  85  111.  594  (28  Am.  Rep.  626) ;  Wright  v.  Mul- 
vaney,  78  Wis.  89  (46  N.  W.  Rep.  1045,  9  L.  R.  A.  807,  23  Am.  St.  Rep. 
393);  Newark  Coal  Co.  v.  Upson,  40  Ohio  St.  17;  Howard  v.  Manufac- 
turing Co.,  139  U.  S.  199  (11  Sup.  Ct.  Rep.  500,  35  L.  Ed.  147).  So 
where  an  agent  contracts  to  give  his  entire  time  to  his  employer  for  a 
compensation  to  be  determined  by  commissions  on  sales  of  goods,  his 
measure  of  damage  for  being  thrown  out  of  employment  under  the 
contract  is  the  value  of  his  time  lost,  and  not  the  profits  which  he 
would  have  made;  the  value  of  his  time  being  a  more  satisfactory 
measure  than  the  uncertain  and  indefinite  profits.  Howe  ^Machine 
Co.  V.  Bryson,  44  Iowa,  159;  Wilson  Sewing  Mach.  Co.  v.  Sloan,  50 
Iowa,  367;  Brigham  r.  Carlisle,  78  Ala.  243.  These  last  three  cases 
are  especially  relied  on  by  appellant,  but  the  present  case  is  plainly 
distinguishable  from  them.  In  those  cases  there  was  a  measure  of 
damage  which  could  be  resorted  to  for  the  purpose  of  giving  the  in- 
jured party  relief  for  breach  of  contract;  and  the  court  in  each  case 
thought  that  this  measure  was  more  satisfactory  than  that  to  be 
reached  by  considering  the  profits  which  might  have  been  made  by 
the  complaining  party,  had  he  been  allowed  to  perform  his  contract. 
If  the  question  considered  in  Howe  Machine  Co.  v.  Bryson,  supra, 
were  now  before  us  for  the  first  time,  we  might,  in  view  of  the  later 
authorities,  incline  to  the  view  expressed  in  the  dissenting  opinion. 
As  supporting  that  \'iew,  see,  in  addition  to  cases  already  cited,  ^^ells 
V.  Association,  39  C.  C.  A.  476  (99  Fed.  Rep.  222,  53  L.  R.  A.  33). 
But  in  the  case  before  us  there  is  no  such  measure  of  damage  available 
as  was  found  in  the  cases  relied  on  by  counsel  for  appellant.  Defendant 
did  not  contract  to  give  his  entire  services  to  plaintiff  in  the  sale  of 
cigars,  nor  were  his  entire  earnings  dependent  on  the  profits  to  be 
made  out  of  this  contract.  Here  it  is  impossible  to  estimate  his  damage 
by  the  value  of  the  time  lost.  Nor  is  it  possible  to  measure  his  damage 
by  the  labor  and  expense  involved  in  introducing  plaintiffs'  cigars  to 


740 


IIICHHORX  MACK  &  CO.   V.  BRADLEY. 


[chap.  VI. 


the  trade.     To  some  extent,  defendant  has  already  been  compensated 
for  that  labor  and  expense  by  the  profits  derived  from  the  sale  of  plain- 
tiffs' cigars  during  the  time  of  the  continuance  of  defendants'  agency; 
and  it  would  be  manifestly  impossible  to  determine  the  proportion  of 
the  labor  and  expense  for  which  he  had  received  compensation,  and 
the  proportion  for  which  he  was  dependent  by  way  of  compensation 
on  the  profits  which  should  have  been  derived  from  future  sales  which, 
he  was  not  allowed  to  make.    It  is  well  established  by  the  decided  pre- 
ponderance of  authority  that  where  future  profits  are  in  the  contem- 
plation of  the  parties,  and  there  is  no  other  basis  on  which  damages 
for  breach  of  contract  can  be  estimated,  such  profits  may  be  made  the 
basis  for  the  recovery  of  damages.    Dennis  v.  Maxfield,  10  Allen,  139; 
Dart  V.  Laimbeer,  107  N.  Y.  GG4  (14  N.  E.  Rep.  291);  Treat  v.  Hiles, 
81  Wis.  280  (.50  N.  W.  Rep.  896);  Anvil  Mining  Co.  v.  Humble,  153 
U.  S.  540  (14  Sup.  Ct.  Rep.  876,  38  L.  Ed.  814);  Fairchild  v.  Rogers, 
32  Minn.  269  (20  N.  W.  Rep.  191);  Simpson  v.  Railway  Co.,  1  Q.  B. 
Div.  274.    And  see  Richmond  v.  Railroad  Co.  33  Iowa,  422,  and  Rich- 
mond V.  Railroad  Co.,  40  Iowa,  264,  in  which  the  right  to  recover 
prospective  profits  was,   to  some  extent,   recognized  by  this  court. 
The  right  to  recover  prospecti\-e  profits,  and  the  admissibility  of  such 
evidence  as  was  introduced  in  the  case  before  us  as  bearing  on  the 
amount  of  such  profits  are  fully  sustained  in  Mueller  v.  Spring  Co.,  -88 
Mich.  390  (50  N.  W.  Rep.  319).    In  that  case  an  agent  who  had  been 
given  the  exclusive  right  in  a  certain  territory  for  the  sale  of  a  certain 
kind  of  mineral  water,  of  which  defendant  was  the  sole  proprietor, 
brought  action  for  breach  of  contract  in  wrongfully  terminating  his 
agency  for  the  sale  of  such  water  and  giving  it  to  another  party;  and 
the  court  uses  this  language:    "The  measure  of  plaintiff's  damages 
was  the  profits  which  Mueller  might  have  realized  if  defendant  had 
performed  its  contract.     Loud  v.  Campbell,  26  Mich.  239;  Leonard 
V.  Beaudry,  68  Mich.  312  (36  N.  W.  Rep.  88).    While  it  may  be  true 
that  Mueller  would  not  have  disposed  of  as  much  of  the  article  as  this 
firm  did,  yet  the  amount  of  their  sales,  while  not  conclusive  upon  de- 
fendant, was  competent  evidence  to  go  to  the  jury  upon  the  question 
of  plaintiff's  damages.     It  would  have  been  proper  to  draw  out  upon 
cross-examination  what  special  effort  had  been  made  by  this  firm  to 
introduce  and  push  this  commodity,  but  the  sales  for  the  season  named 
may  have  been  greater  than  for  the  previous  season,  because  of  a  de- 
mand created  by  what  Mueller  did,  rather  than  by  any  special  effort 
by  this  firm.    Here  was  a  commodity  of  which  defendant  was  the  sole 
proprietor,  and  for  which  Mueller  was  made  sole  agent.     All  of  this 
commodity  reaching  the  territory  named  came  from  defendant  directly 
to  Mueller,  and  through  his  agency.    The  agency  of  the  firm  of  Basset 
&  L'Hommeflieu  succeeded  that  of  Mueller.     They  took  it  up  where 
he  left  off,  and  continued  it  for  the  five  months  for  which  he  was  to 
enjoy  its  fruits.     Proofs  as  to  the  amount  actually  sold  by  them  for 


SECT.  III.]  HICIIHORN  MACK  &  CO.  V.  BRADLEY.  741 

that  five  months  cannot  be  said  to  be  speculative."     In  a  somewhat 
similar  case  [Wakeman  v.  Manufacturing  Co.,  101  N.  Y.  205  (4  N.  E. 
Rep.  264,  54  Am.  Rep.  676)],  it  is  said  that  damages  by  way  of  pros- 
pective profits  "are  nearly  always  involved  in  some  uncertainty  and 
contingency.     Usually  they  are  to  be  worked  out  in  the  future,  and 
they  can  be  determined  only  approximately  upon  reasonable  conjec- 
tures and  probable  estimates.    They  may  be  so  uncertain,  contingent, 
and  imaginary  as  to  be  incapable  of  adequate  proof,  and  then  they 
cannot  be  recovered,  because  they  cannot  be  proved.     But  when  it  is 
certain  that  damages  have  been  caused  by  a  breach  of  contract,  and 
the  only  uncertainty  is  as  to  their  amount,  there  can  rarely  be  good 
reason  for  refusing,   on  account  of  such  uncertainty,   any  damages 
whatever  for  the  breach.     A  person  violating  his  contract  should  not 
be  permitted  entirely  to  escape  liability  because  the  amount  of  the 
damages  which  he  has  caused  is  uncertain.     It  is  not  true  that  loss  of 
profits  cannot  be  allowed  as  damages  for  a  breach  of  contract.    Losses 
sustained  and  gains  prevented  are  proper  elements  of  damage.    Most 
contracts  are  entered  into  ^vith  the  ^•iew  to  future  profits,  and  such 
profits  are  in  the  contemplation  of  the  parties,  and,  so  far  as  they  can 
be  properly  pro\'ed,  they  may  form  the  measure  of  damage.    As  they 
are  prospective,  they  must,  to  some  extent,  be  uncertain  and  problem- 
atical, and  yet  on  that  account  a  person  complaining  of  breach  of 
contract  is  not  to  be  deprived  of  all  remedy.    It  is  usually  his  right  to 
prove  the  nature  of  his  contract,-  the  circumstances  surrounding  and 
following   its    breach,    and   the   consequences   naturally    and   plainly 
traceable  to  it;  and  then  it  is  for  the  jury,  under  proper  instructions 
as  to  the  rules  of  damages,  to  determine  the  compensation  to  be  awarded 
for  the  breach.     When  a  contract  is  repudiated,  the  compensation  of 
the  party  complaining  of  its  repudiation  should  be  the  value  of  the 
contract."    To  the  same  effect,  see  Schumaker  v.  Heinemann,  99  Wis. 
251  (74  N.  W.  Rep.  785).    Although  such  a  measure  of  damages  may 
be  unsatisfactory  and  uncertain,  yet,  if  it  is  the  most  satisfactory  and 
certain  measure  which  is  attainable,  justice  is  not  to  be  defeated  be- 
cause a  better  measure  is  not  at  hand.     "The  administration  of  jus- 
tice frequently  proceeds  with  reasonable  certainty  of  accomplishing 
what  is  right,  or  as  nearly  right  as  human  efforts  may  attain  in  the 
face  of  similar  difficulties;  and  it  does  so  by  making  the  experience  of 
mankind,  or,  rather,  the  judgment  which  is  founded  upon  such  ex- 
perience, the  guide."    Taylor  v.  Bradley,  39  N.  Y.  129,  144  (100  Am. 
Dec.  415).    It  seems  never  to  have  been  held  in  this  state  that,  where 
there  is  no  other  measure  of  damage  for  breach  of  contract,  a  con- 
tracting party  is  to  l)e  denied  any  damages  because  no  better  measure 
than  the  reasonable  prospective  profits  of  a  business  is  attainable. 
We  think  that  it  would  be  manifestly  unjust  to  deny  to  the  defendant 
in  this  case  any  recovery  whatever  for  breach  of  his  contract  because 
the  contract  itself-  contemplated   and   was   based   upon   prospective 


742       COMSTOCK  V.   CONNECTICUT   RY.    &    LIGHTING   CO.       [CHAP.    VI. 

profits.  The  evidence  introduced  did  furnish  as  fair  a  basis  for  esti- 
mating such  profits  as  could  be  furnished  with  reference  to  the  breach 
of  any  such  contract,  and  we  think  it  was  admissible,  and  that  the 
court  properly  submitted  it  to  the  jury.  Such  a  contract  as  we  have 
before  us  was  recognized  as  valid  in  Kaufman  v.  Manufacturing  Co., 
78  Iowa,  679,  and  Rosenberger  v.  Marsh,  108  Iowa,  47,  although  the 
question  of  measure  of  damages  was  not  presented  in  those  cases. 

Affirmed. 


COMSTOCK  V.  CONNECTICUT  RAILWAY  AND  LIGHTING  CO. 

Supreme  Court  of  Connecticut,  1904. 

'  [Reported  77  Conn.  65.] 

Baldwin,  J.  In  one  of  these  actions,  a  husband  sues  for  his  owTi 
loss  from  injuries  suffered  by  the  wife:  in  the  other  both  sue  for  her 
loss.  In  each  action  the  complaint  states  that  when  injured  she  was 
keeping  a  fashionable  city  boarding-house;  that  her  injuries  prevented 
her  from  continuing  to  keep  it;  and  that  she  has  since  not  been  able  to 
do  any  work  whatever,  and  has  been  at  great  expense  for  medical 
treatment.  In  the  action  by  the  husband,  he  alleges  that  when  she 
was  injured  and  for  a  long  period  before,  she  had  supported  him,  but 
that  he  has  since  been  deprived  of  such  support  and  of  her  services, 
and  will  ))e  for  a  long  period  to  come. 

The  finding  shows  these  facts:  The  husband  was  out  of  health  and 
unable  to  work,  except  in  assisting  in  the  conduct  of  the  affairs  of  the 
family.  The  wife  kept  a  boarding-house,  as  alleged.  During  the 
summer  months  she  had  from  ten  to  sixteen  boarders;  during  the  rest 
of  the  year  from  two  to  five.  It  did  not  appear  that  this  business  was 
conducted  upon  her  personal  credit,  or  for  the  benefit  of  her  separate 
estate.  Her  injuries  compelled  her  to  refuse  to  receive  any  boarders 
for  six  months,  including  the  summer  following  the  accident,  and  since 
then  she  has  not  taken  as  many  boarders  as  before.  The  expense  of 
necessary  medical  attendance  was  $150. 

It  was  agreed  that  damages  for  the  loss  of  her  earnings  and  services 
should  be  assessed  in  only  one  action.  The  judgment  for  $300  in  favor 
of  the  liusband  was  for  the  $150  above  mentioned,  and  for  the  loss  of 
his  wife's  ser\'ices  and  society.  The  other  judgment  for  $500  was  for 
her  injuries,  pain  and  suffering. 

On  the  trial  Mr.  Comstock  was  asked  how  he  had  lived  during  the 
past  year  without  the  services  of  his  wife  and  support  from  her.  This 
question  was  properly  excluded.  An  answer  would  not  have  tended 
to  show  that  she  had  previously  supported  him;  nor  if  she  had,  was  it 


SECT.    III.]        COMSTOCK  V.   CONNECTICUT   RY,    &    LIGHTING   CO.        743 

of  any  consequence  in  what  manner  he  had  since  been  able  to  subsist 
without  her  aid. 

The  plaintiffs,  when  produced  as  witnesses  in  their  own  behalf,  were 
severally  asked  whether  the  keeping  of  boarders  had  been  profitable 
during  the  year  previous  to  the  injury;  and  it  was  proposed  to  follow 
this  up  by  asking  each  to  estimate  the  amount  of  such  profits,  and  also 
the  profits  for  the  next  succeeding  year.  No  claim  was  made  that  ac- 
counts had  been  kept  showing  the  items  of  cost  and  receipts,  or  that 
such  items  could  be  proved.  The  question  was  excluded,  on  the  ground 
that  such  evidence  was  remote,  speculative  and  immaterial. 

The  complaint  stated  that  she  was  the  keeper  of  a  fashionable 
boarding-house,  and  had  long  furnished  her  husband  with  support. 
This,  after  a  default,  fairly  implied  that  his  support  came  from  her 
keeping  the  boarding-house,  and  that  her  services  in  that  business 
were  valuable  to  him.  How  valuable  they  were,  and  how  great  had 
been  his  loss,  could  best  be  ascertained  by  showing  what  the  profits 
from  it  were,  before  the  injury,  and  what  they  had  been  since. 

A  loss  of  profits  cannot  be  shown  in  proof  of  damage  from  a  breach 
of  contract,  unless  damage  from  that  source  should  reasonably  have 
been  contemplated  by  the  defendant,  at  the  date  of  the  contract,  as  a 
natural  result  of  the  breach.  Lewis  v.  Hartford  Dredging  Co.,  68  Conn. 
221,  234.  He  who  does  a  wrongful  injury  to  the  person  of  another  is 
held  to  a  stricter  rule  of  liability.  If  the  injury  directly  impairs  the 
earning  capacity  of  the  latter,  he  can  recover  in  an  action  of  tort,  under 
proper  pleadings,  the  amount  of  his  loss  from  such  impairment,  although 
by  reason  of  his  peculiar  knowledge  or  ability  it  may  be  much  greater 
than  that  which  would  have  been  suffered  by  an  ordinary  man,  and 
although  his  possession  of  this  peculiar  knowledge  or  ability  may  have 
been  unknown  to  the  defendant  when  the  wrong  was  dope. 

There  are  two  modes  of  proving  what  is  a  man's  earning  capacity. 
His  general  qualities  and  his  qualifications  for  any  particular  business 
in  which  he  may  be  engaged  may  be  described  by  those  who  know  him, 
and  under  some  circumstances  they  can  give  their  opinion  as  to  what 
sum  represents  the  pecuniary  value  of  his  earning  capacity  for  a  certain 
period  of  time.  Harmon  v.  Old  Colony  R.  Co.,  1G8  Mass.  377,  47 
Northeastern  Rep.  100;  Matteson  v.  New  York  Central  R.  Co.,  35 
N.  Y.  487,  493.  The  other  mode  is  to  show  what  his  earnings  in  fact 
were  during  a  certain  period.  If  he  was  employed  by  another  on  a 
salary,  or  worked  at  a  trade,  to  those  engaged  in  which  a  fixed  rate  of 
wages  was  customarily  paid,  they  are  easily  proved.  Finken  v.  Elm 
City  Brass  Co.,  73  Conn.  423,  425.  If  he  was  himself  conducting  a 
business,  the  net  receipts  from  which  were  naturally  due  to  his  ability 
to  conduct  it  successfully  and  can  be  ascertained  uath  reasonable 
certainty,  the  amount  thus  realized,  while  it  may  be  more  difficult  to 
cipher  it  out  with  accuracy,  is  also  a  proper  subject  of  evidence.  The 
business  of  the  keeper  of  an  established  and  "fashionable"  boarding- 


744       COMSTOCK  V.   CONNECTICUT   RY.    &    LIGHTING   CO.       [CHAP.   VI. 

house  is  one  of  this  kind.  To  prosecute  it  successfully  requires  special 
qualities.  Whoever  engages  in  it  should  have  the  gift  of  management; 
be  a  good  buyer;  know  how  to  provide  liberally  and  not  lavishly; 
possess  tact,  prudence  and  discretion.  Such  assistance  as  it  is  necessary 
to  have  generally  comes  from  those  employed  at  fixed  wages.  There 
•is  a  fixed  rate  of  charge  against  each  of  the  boarders.  Rent  is  a  fixed 
item,  unless  the  house  is  owned  by  the  one  who  keeps  it,  in  which  case 
the  annual  value  of  its  use  can  easily  be  shown.  The  net  returns,  or 
profits,  of  such  a  business  are  quite  as  readily  ascertained  as  those 
arising  from  the  practice  of  a  profession ;  and  are  equally  a  proper  sub- 
ject of  proof,  in  a  case  like  this.  They  are  to  be  considered  simply  as 
bearing  on  the  earning  capacity  of  the  person  conducting  it,  and  only 
such  can  be  shown  as  are  susceptible  of  estimation  with  reasonable 
certainty.  Wallace  v.  Pennsylvania  R.  Co.,  195  Pa.  St.  127,  45  Atl. 
Rep.  685,  52  L.  R.  A.  33;  French  v.  Connecticut  River  Lumber  Co., 
145  Mass.  261,  14  Northeastern  Rep.  113;  Ehrgott  v.  Mayor,  96  N.  Y. 
264,  275.  It  was  immaterial  that  no  claim  was  made  that  itemized 
accounts  of  the  costs  and  receipts  of  the  business  had  been  kept.  This 
absence  of  books  went  simply  to  the  weight  of  the  evidence,  and  could 
not  affect  the  right  to  ask  for  such  an  estimate  of  the  profits  realized 
as  could  be  made  without  such  aid. 

The  force  of  the  evidence  as  to  the  profits  of  Mrs.  Comstock's  busi- 
ness before  her  injury  depended,  so  far  as  the  claim  for  compensation 
for  losses  to  be  anticipated  in  the  future  was  concerned,  on  comparing 
them  with  what  they  had  been  since  her  injury.  The  testimony  which 
it  was  proposed  to  give  as  to  the  latter  point  would  therefore  have  been 
admissible.  Illinois  Central  R.  Co.  v.  Davidson,  76  Fed.  Rep.  517,  521, 
22  C.  C.  A.  306. 

Under  the  agreement  of  the  parties  that  all  damages  for  loss  of  Mrs. 
Comstock's  earnings  and  services  should  be  assessed  in  only  one  action, 
the  Superior  Court  assessed  them  in  that  brought  by  her  husband. 
Of  this  no  complaint  is  made  by  any  of  the  parties,  and  it  must  therefore 
be  treated  as  agreed  that  it  was  proper  to  do  so.  The  error  in  exclud- 
ing the  evidence  to  enhance  them  was  therefore  one  by  which  he  only 
was  aggrieved. 

There  is  error  in  the  judgment  in  the  action  brought  by  Stephen 
Comstock,  and  a  new  trial  is  ordered. 

There  is  no  error  in  the  judgment  in  the  other  action. 

In  this  opinion  the  other  judges  concurred. 


SECT.    III.]      ORBACH  V.   PARAMOUNT  PICTURES   CORPOR.\TION.        745 


ORBACH  V.  PARAMOUNT  PICTURES  CORPORATION. 
SuPKEME  Judicial  Court  of  Massachusetts,  1919. 

[Reported  233  Mass.  281.] 

De  Courcy,  J.  The  plaintiff,  who  owned  and  operated  the  Owl 
Theatre  in  Lowell,  seeks  to  recover  damages  from  the  defendant,  a 
distributor  of  motion  picture  films,  for  breach  of  six  wTitten  contracts. 
Under  these  agreements  the  defendant,  during  the  year  beginning 
September  1,  1917,  was  to  release  a  certain  number  of  films  or  plays, 
in  which  designated  well-known  "stars"  enacted  the  leading  role; 
and  to  license  the  plaintiff  to  exhibit  one  copy  of  the  films  at  his  theatre 
for  three  successive  days,  at  a  specified  price.  The  defendant  now 
concedes  that  there  was  evidence  which,  if  believed,  warranted  the 
jury  in  finding  that  the  alleged  ■contracts  were  executed  and  delivered. 
No  films  were  actually  furnished,  the  defendant  contending  at  the 
trial  that  no  contract  was  executed.  This  disposes  of  the  first  and 
second  requests  for  rulings,  dealing  with  the  issue  of  liability. 

While  admitting  that  the  plaintiff  is  entitled  to  prevail,  the  de- 
fendant strongly  urges  that  the  evidence  of  loss  sustained  by  the  plain- 
tiff by  reason  of  the  breach  of  contract  was  too  remote  and  speculative 
to  sustain  a  verdict  for  more  than  nominal  damages.  The  trial  judge 
in  instructing  the  jury  as  to  the  general  rule  applicable  adopted  the 
following  language  of  this  court  in  LowTie  r.  Castle,  225  IVIass.  37,  51 : 

"Prospective  profits  may  be  recovered  in  an  appropriate  action 
when  the  loss  of  them  appears  to  have  been  the  direct  result  of  the 
wrong  complained  of  and  when  they  are  capable  of  proof  to  a  reason- 
able degree  of  certainty.  They  need  not  be  susceptible  of  calculation 
-with  mathematical  exactness,  pro\  ided  there  is  a  sufficient  foundation 
for  a  rational  conclusion.  .  .  .  But  such  damages  cannot  be  recovered 
when  they  are  remote,  speculative,  hypothetical,  and  not  within  the 
realm  of  reasonable  certainty."  There  was  evidence  that  at  the  time 
when  the  defendant  repudiated  its  contracts  and  refused  to  furnish 
the  films  which  it  controlled,  and  which  were  of  moving  picture  "stars" 
especially  popular  with  theatrical  patrons,  it  was  too  late  for  the  plain- 
tiff to  secure  adequate  substitutes  for  the  coming  theatrical  year;  and 
that  as  a  natural  result,  and  one  prestunably  within  the  contempla- 
tion of  the  parties,  the  audiences  attracted  to  the  Owl  Theatre  were 
diminished  in  number  and  the  income  correspondingly  reduced.  Speak- 
ing accurately,  such  loss  would  l)e  the  ordinary  damage  consequent  on 
the  defendant's  failure  to  furnish  the  pictures  as  agreed,  rather  than  a 
loss  of  "special  profits." 

In  proving  the  loss  he  sustained,  the  plaintiff  offered  evidence  (1)  of 


746        ORBACH  V.   PARAMOUNT   PICTURES   CORPORATION.      [cHAP.   VI. 


the  net  profits  of  his  theatre  during  the  period  involved,  and  (2)  of 
wliat  the  net  profits  probably  would  have  been  during  that  period  if 
the  defendant  had  carried  out  its  contracts.  As  to  (1)  he  presented 
a  detailed  report  of  the  gross  receipts  from  September  1,  1917,  until 
he  sold  out  his  theatre  in  March,  1918;  and  it  could  be  found  that  he 
obtained  all  the  income  he  reasonably  could.  The  actual  expenses 
during  this  period  were  $250  a  week  for  film  service,  and  $250  for  other 
expenses.  Plainly  this  was  competent.  As  to  (2),  the  expenses  of 
running  the  theatre  if  the  plaintiff  had  obtained  the  defendant's  pic- 
tures would  not  differ  from  those  actually  incurred,  except  in  the 
larger  sum  to  be  paid  for  films,  —  which  item  could  readily  be  ascer- 
tained. The  only  uncertain  element  to  be  established  was  the  probable 
additional  income  which  would  have  accrued  if  the  plaintiff  had  been 
allowed  to  exhibit  the  films  specified  in  the  contracts.  On  that  issue 
he  showed  the  gross  receipts  of  his  theatre,  week  by  week,  during  the 
preceding  year,  as  well  as  after  September  1,  1917;  thus  indicating 
what  his  theatre,  located  and  appointed  as  it  was,  could  earn  even  with 
pictures  of  a  grade  inferior  to  Paramount  films.  Loughery  xi.  Huxford, 
206  Mass.  324.  Nelson  Theatre  Co.  v.  Nelson,  216  Mass.  30.  Most 
significant  was  the  evidence  that  the  Merrimac  Square  Theatre, 
situated  on  a  side  street  in  the  same  city,  while  exhibiting  these  same 
Paramount  pictures,  and  at  the  very  time  that  the  defendant  had 
contracted  to  let  the  plaintiff  have  them,  drew  crowded  houses  and 
people  were  turned  away.  This  theatre  had  a  larger  seating  capacity 
than  the  Owl,  and  was  subject  to  the  same  conditions  as  to  competi- 
tion. There  was  also  evidence  that  the  patronage  of  a  theatre  depends 
on  the  particular  "star"  who  is  being  exhibited,  that  the  Paramount 
had  the  "finest  stars,"  as  compared  with  those  of  other  companies, 
and  that  the  contracts  contemplated  "first  run"  pictures,  that  is, 
pictures  which  never  before  had  been  exhibited  in  Lowell.  Unlike 
cases  such  as  Todd  v.  Keane,  167  Mass.  157,  we  cannot  say  as  matter 
of  law  that  the  evidence  afforded  no  satisfactory  basis  on  which  a  jury 
Avould  be  warranted  in  finding  more  than  nominal  damages.  We  find 
no  error  in  the  refusal  to  give  the  defendant's  requests  numbered  17, 
18  and  21.  No  exception  was  taken  to  the  judge's  charge.  Weston  v. 
B.  &  M.  R.  R.,  190  Mass.  298.  Gagnon  v.  Sperry  &  Hutchinson  Co., 
206  Mass.  547.  Neal  v.  Jefferson,  212  Mass.  517.  Nelson  Theatre  Co. 
V.  Nelson,  supra.  Barry  v.  N.  Y.  Holding  &  Construction  Co.,  226 
Mass.  14,  .  .  . 

Exceptions  overruled. 


I 


SECT.    III.]  WHITE   V.   MILLER,  747 


WHITE  V.  MILLER. 
Court  of  Appeals,  New  York,  1877. 

[Reported  71  N.  Y.  118.] 

This  action  was  brought  against  defendants  as  "trustees  of  the 
mutual  society  called  Shakers,"  located  in  the  town  of  Watervliet, 
Albany  County,  to  recover  damages  alleged  to  have  been  sustained 
by  reason  of  a  breach  of  warranty  made  upon  sale  of  a  quantity  of 
cabbage  seed. 

Andrews,  J.  .  .  .  The  referee,  in  fixing  the  damages,  followed  the 
rule  laid  down  in  Passinger  v.  Thorburn  (34  N.  Y.  634),  which  was 
also  an  action  for  a  breach  of  warranty,  in  the  sale  of  cabbage  seed. 
The  defendant  in  that  case  warranted  the  seed  to  be  Bristol  cabbage 
seed,  and  that  it  would  produce  Bristol  cabbage.  The  court  held,  all 
the  judges  concurring,  that  the  plaintiff  was  entitled  to  recover  the 
difference  in  value  between  the  crop  raised  from  the  defective  seed, 
and  a  crop  of  Bristol  cabbage,  such  as  would  ordinarily  have  been  pro- 
duced in  the  year  in  which  the  seed  was  to  be  sown.  The  learned 
judge,  who  delivered  the  opinion,  referred  to  a  large  number  of  au- 
thorities as  sustaining  the  rule  adopted  by  the  court;  and,  among 
others,  to  the  case  of  Randall  v.  Roper  (E.  B.  &  E.  84),  in  which  it 
was  held  that  in  an  action  on  a  warranty,  made  by  the  defendants  to 
the  plaintiff,  on  a  sale  by  the  former  to  the  latter  of  seed  barley,  that 
the  seed  sold  was  "chevalier"  seed  barley,  but  which  was,  in  fact, 
barley  of  an  inferior  quality;  the  plaintiffs,  who  had  resold  the  barley, 
with  a  similar  warranty,  could  recover  of  their  vendors  the  loss  sus- 
tained by  the  sub-vendees,  measured  by  the  difference  in  value  be- 
tween the  inferior  crop  produced  and  that  which  might  have  been  pro- 
duced from  "chevalier"  barley.  The  case  of  Passinger  v.  Thorburn 
was  approved  in  Milburn  v.  Belloni  (39  N.  Y.  53),  and  was  said  by 
the  court  to  be  decisive  of  the  case  then  under  consideration.  In 
Wolcott  V.  Mount  (36  N.  J.  262),  and  Fleck  v.  Weatherton  (20  Wis. 
392),  the  rule  adopted  in  Passinger  v.  Thorburn  was  approved  and 
applied  by  the  court.  We  think  the  case  of  Passinger  v.  Thorburn 
should  be  adhered  to.  It  was  carefully  considered  and  decided,  and  we 
are  not  prepared  to  say  that  the  rule  there  adopted  is  a  departure  from 
correct  principle.  Gains  prevented,  as  well  as  losses  sustained,  may 
be  recovered  as  damages  for  a  breach  of  contract,  where  they  can  be 
rendered  reasonably  certain  by  evidence,  and  have  naturally  resulted 
from  the  breach.  (Masterton  v.  The  Mayor,  etc.,  7  Hill,  61;  Griffin  v. 
Colver,  16  N.  Y.  489;  Messmore  v.  The  N.  Y.  Shot  and  Lead  Co., 
40  N.  Y.  422.)  But  mere  contingent  or  speculative  gains  or  losses, 
with  respect  to  which  no  means  exist  of  ascertaining  with  any  cer- 


748  REIGER   v.    WORTH.  [cHAP.    VI. 

rainty  whether  they  woiilfl  have  resulted  or  not,  are  rejected,  and  the 
jury  will  not  be  allowed  to  consider  them.  Can  it  be  said  that  the 
damages  allowed  in  Passinger  v.  Thorburn  are  incapable  of  being 
ascertained  Avith  reasonable  certainty  by  a  jury? 

The  character  of  the  season,  whether  favorable  or  unfavorable  for 
production;  the  manner  in  which  the  plants  set  were  cultivated;  the 
condition  of  the  ground;  the  results  observed  in  the  same  \'icinity 
where  cabbages  were  planted,  under  similar  circumstances;  the  market 
xidue  of  Bristol  cabbages  when  the  crop  matured;  the  value  of  the 
crop  raised  from  the  defective  seed;  these,  and  other  circumstances, 
m^y  be  shown  to  aid  the  jury,  and  from  which  they  can  ascertain  ap- 
proximately the  extent  of  the  damages  resulting  from  the  loss  of  a 
crop  of  a  particular  kind. 

Judgment  reversed. 


REIGER  V.  WORTH. 
Supreme  Court  of  North  Carolina,  1900. 

[Reported  127  A'.  C.  230.] 

Montgomery,  J.  This  action  was  brought  by  the  plaintiff  to  re- 
cover damages  of  defendant  on  account  of  a  breach  of  warranty,  the 
form  of  the  action  being  that  formerly  known  as  "case."  The  plain- 
tiff bought  of  the  defendant  a  quantity  of  rice,  which  he  alleged  the 
defendant  represented  to  be  good  seed  rice,  but  which  was  in  fact  not 
good  seed  rice,  and  which  failed  to  sprout  after  having  been  planted, 
although  the  land  was  well  prepared.  The  plaintiff  further  alleged 
that  it  was  too  late,  after  he  discov-^ered  that  the  rice  was  worthless 
for  seed,  and  had  failed  to  germinate,  to  plant  for  another  crop.  The 
jury  found  these  allegations  of  fact  to  be  true.  The  plaintiff  demanded 
judgment  for  the  amount  paid  for  the  rice,  for  the  amount  he  expended 
in  preparing  the  land  and  in  planting  the  rice,  and  for  the  amount  of 
profit  which  would  have  been  made  by  the  plaintiff  upon  the  antici- 
jiated  crop  had  the  rice  sprouted.  The  following  issues  were  submitted 
to  the  jury:  (1)  Was  the  rice  sold  by  the  defendant  to  the  plaintiff 
warranted  to  be  good  seed  rice?  (2)  If  so,  was  it  such  as  it  was  war- 
ranted to  be?  (3)  If  not,  what  damage  has  plaintiff  sustained?  The 
third  issue  was  sub-divided  into  (1)  actual  damages,  (2)  the  loss  of 
crop.  The  third  issue  was  sub-di\ided,  as  is  stated  in  the  case  on  ap- 
peal, to  make  a  new  trial  unnecessary  in  case  the  Supreme  Court 
should  hold  damages  of  crop  were  too  remote  and  speculative.  The 
jury  responded  to  the  first  issue,  "Yes;"  to  the  second,  "No,"  and  to 
the  third  (sub-division  1),  "$284,"  and  to  the  second  sub-division, 
"$400,"  and  judgment  was  rendered  against  the  defendant  for  both 


SECT.    III.]  REIGER   I'.    WORTH.  749 

amounts.  The  appeal  of  the  defendant  is  from  so  much  of  the  judg- 
ment as  is  contained  in  the  amount  which  the  jury  found  in  response 
to  the  second  sub-division  of  the  third  issue  —  for  the  loss  of  the 
crop. 

The  appeal,  however,  brings  with  it  the  question  of  the  correctness 
of  the  submitting  by  his  Honor  of  the  second  sub-division  of  the  third 
issue;  of  his  receiving  the  testimony  of  witnesses  as  to  the  price  of  rice 
in  the  fall  of  the  year  1898,  the  time  when  the  anticipated  crop  would 
have  matured;  and  as  to  the  average  yield  of  rice  on  such  land  as  the 
plaintiff's  and  as  the  plaintiff  had  prepared;  and  of  his  instruction  to 
the  jury  on  the  second  sub-division  of  the  third  issue.  That  instruc- 
tion was,  after  calling  attention  to  the  evidence  and  contentions  of 
the  parties,  "that  they  would  allow  the  plaintiff  such  a  sum  as  they 
would  find  from  the  evidence  his  net  profit  on  the  crop  would  have  been 
if  there  had  been  no  breach  of  the  warranty.  This  is  the  sum  left 
after  deducting  expenses  of  preparing  for  and  working  said  crop, 
housing  and  marketing  the  same."  The  matter  involved  in  his  Honor's 
instruction  to  the  jury  is  the  one  to  which  all  of  the  defendant's  other 
exceptions  point,  and  the  discussion  of  the  charge  is,  therefore,  the 
discussion  of  them  all.  The  question  for  consideration  and  decision, 
then,  is:  Can  one  who  sells  a  farm  product  to  a  purchaser,  the  pur- 
chaser making  known  at  the  time  of  the  purchase  that  he  wants  the 
article  for  seed  with  which  to  plant  a  crop,  and  who  guarantees  that 
the  article  which  he  sells  is  good  for  the  purposes  of  seeding,  be  made 
liable  in  damages  in  case  of  the  entire  worthlessness  of  the  article  for 
seed  purposes,  discovered  after  the  land  has  been  prepared  and  the 
seed  sowTi,  and  too  late  to  plant  another  crop,  for  such  an  amount  as 
a  jury  might  find  upon  the  testimony  of  witnesses  to  be  the  value  of 
the  crop  which  might  have  been  gathered  if  the  seed  had  been  good, 
and  a  fair  crop  raised?  Compensation  is  to  be  made  to  the  one  who 
sustains  an  injury  in  his  person,  in  his  property,  or  in  his  reputation. 
This  is  a  general  principle  underlying  the  law  of  damages.  And  there 
is  another  general  rule  to  the  effect  that  the  remote  consequences  of 
an  act,  or  conjectural  consequences,  do  not  make  a  person  liable  in 
damages.  Damages  can  be  recovered  against  one  only  for  the  conse- 
quences of  his  act  when  those  consequences  are  proximate,  or  natural. 
Great  difficulty  had  been  found  in  all  the  courts  in  the  proper  applica- 
tion of  these  general  rules  to  the  peculiar  facts  of  particular  cases,  and 
many  of  the  reported  cases  are  in  hopeless  conflict.  .  .  . 

In  the  case  of  iioberts  v.  Cole,  82  X.  C.  292,  it  appears  from  the  case 
that  the  parties  to  the  action  agreed  to  build  and  keep  in  repair  sepa- 
rate parts  of  a  common  division  fence,  which  divided  and  protected 
their  respective  crops.  The  defendant  violated  his  agreement,  per- 
mitting his  part  of  the  fence  to  become  rotten,  whereupon  hogs  broke 
into  the  plaintift"s  field,  and  injured  his  crop.  In  the  trial  of  the  case 
his  Honor  told  the  jury  that,  if  the  fence  was  intended  by  the  parties 


750  WESTERN   UNION   TELEGRAPH   CO.    V.    HALL.       [CHAP.    VI. 

to  guard  their  crops  from  the  depredations  of  stock,  the  plaintiff  was 
entitled  to  whatever  he  had  expended  in  the  renewing  of  the  fence, 
and  to  have  damages  for  the  injury  to  his  crops,  and  that  the  measure 
of  his  damage  was  the  difference  between  what  the  crop  undisturbed 
ordinarily  would  be,  and  that  which  was  made,  diminished  by  the 
breaking  in  of  the  hogs.  The  Court  said:  "While  the  Court  below 
very  properly  declined  to  restrict  the  plaintiff's  claim  to  compensation 
for  defendant's  breach  of  contract,  as  requested,  and  correctly  directed 
the  jury  to  estimate  and  allow  for  the  ravages  of  the  hogs,  the  rule  by 
which  the  measure  of  his  injury  was  to  be  ascertained  was  too  vague 
and  uncertain  to  act  upon.  The  value  of  the  crop  made  is  capable  of 
definite  calculation,  but  what  it  would  have  made  if  it  had  not  been 
interfered  with  —  the  other  element  in  the  proposition  —  is  and  must 
be  purely  and  wholly  conjectural."  No  precedents  are  referred  to  in 
that  opinion  on  the  point  we  have  been  discussing;  that  is,  upon  the 
question  of  allowing  the  plaintiffs  in  actions  to  give  in  evidence  the 
value  of  crops  that  might  have  been  grown  and  reaped.  .  .  . 

However  that  may  be,  we  have  concluded,  after  mature  reflection 
and  a  careful  study  of  all  the  cases  to  which  we  were  referred  in  the 
argument,  and  which  we  have  found  in  our  investigation,  that  the 
principle  laid  down  in  Roberts  v.  Cole  applies,  and  that  the  plaintiff 
ought  not  to  have  been  allowed  to  recover  the  amount  estimated  as 
the  crop  of  rice  which  might  have  been  produced  upon  the  land  if  the 
rice  had  been  good  seed  rice.  ... 

Error. 


WESTERN  UNION  TELEGRAPH  COMPANY  v.  HALL. 

Supreme  Court  of  United  States,  1888. 

[Reported  124  U.  S.  444.] 

Action  at  law  for  the  recoA'ery  of  damages  for  alleged  negligence 
on  the  part  of  defendant  in  delaying  a  message  received  by  it  from 
the  plaintiff  at  Des  Moines  to  be  delivered  to  the  party  to  whom  it 
was  addressed  at  Oil  City.  The  message  was  in  the  following  terms. 
"To  Chas.  T.  Hall,  Exchange,  Oil  City,  Pa.  Buy  ten  thousand  if 
you  think  it  safe.  Wire  me.  Geo.  F.  Hall."  By  reason  of  an  error 
of  defendant  in  failing  to  send  the  correct  name,  it  was  delivered  at 
6  o'clock  p.  M.  instead  of  ILSO  A.  M.  Had  the  despatch  upon  its  first 
receipt  at  Oil  City,  Pa.,  been  promptly  delivered  to  Charles  T.  Hall, 
he  would,  by  12  m.  of  November  9th  have  purchased  ten  thousand 
barrels  of  petroleum  at  the  then  market  price  of  SI. 17  per  barrel  for 
the  plaintiff.  When  the  despatch  was  delivered  to  Charles  T.  Hall 
the  exchange  had  been  closed  for  that  day,  so  that  said  Hall  could 


SECT.    III.]       WESTERN   UNION  TELEGRAPH   CO.   V.   HALL.  751 

not  then  purchase  the  petroleum  ordered  by  plaintiff.  At  the  open- 
ing of  the  board  the  next  day  the  price  had  advanced  to  .SI. 35  per  barrel, 
at  which  rate  said  Charles  T.  Hall  did  not  deem  it  advisable  to  make 
the  purchase,  and  hence  did  not  do  so. 

It  is  not  disclosed  in  the  evidence  whether  the  price  of  petroleum 
has  advanced  or  receded  since  that  date,  November  10th,  1882.^ 

Matthews,  J.  The  view  we  take  of  this  case  requires  us,  in  answer 
to  the  fourth  question  certified,  to  say  that,  in  the  circumstances  dis- 
closed by  the  record,  the  plaintiff  was  entitled  only  to  recover  nominal 
damages,  and  not  the  difference  in  value  of  the  oil  if  it  had  been  pur- 
chased on  the  day  when  the  message  ought  to  have  been  delivered  and 
the  market  price  to  which  it  had  risen  on  the  next  day.  As  the  judgment 
was  rendered  in  his  favor  for  the  latter  sum,  it  must  be  reversed  on  that 
account,  and,  upon  the  facts  found  by  the  court,  judgment  rendered 
for  nominal  damages  only,  which  finally  disposes  of  the  litigation.  It, 
therefore,  becomes  unnecessary  to  consider  or  decide  any  of  the  other 
questions  certified  to  us. 

It  is  found  as  a  fact  that  if  the  despatch  upon  its  first  receipt  at  Oil 
City  had  been  promptly  delivered  to  Charles  T.  Hall,  to  whom  it  was 
addressed,  he  would  by  twelve  o'clock  on  that  day  have  purchased 
ten  thousand  barrels  of  oil  at  the  market  price  of  $1.17  per  barrel  on 
the  plaintiff's  account.  He  was  unable  to  do  so  in  consequence  of  the 
delay  in  the  delivery  of  the  message.  On  the  next  day  the  price  had 
advanced  to  $1.35  per  barrel,  and  no  purchase  was  made  because 
Charles  T.  Hall,  to  whom  the  message  was  addressed,  did  not  deem  it 
advisable  to  do  so,  the  order  being  conditional  on  his  opinion  as  to 
the  expediency  of  executing  it.  If  the  order  had  been  executed  on  the 
day  when  the  message  should  have  been  delivered,  there  is  nothing 
in  the  record  to  show  whether  the  oil  purchased  would  have  been  sold 
on  the  plaintiff's  account  on  the  next  day  or  not;  or  that  it  was  to  be 
bought  for  resale.  There  was  no  order  to  sell  it,  and  whether  or  not 
the  plaintiff  would  or  would  not  have  sold  it  is  altogether  uncertain. 
If  he  had  not  done  so,  but  had  continued  to  hold  the  oil  bought,  there 
is  also  nothing  in  the  record  to  show  whether,  up  to  the  time  of  the 
bringing  of  this  action,  he  would  or  would  not  have  made  a  profit  or 
suffered  a  loss,  for  it  is  not  disclosed  in  the  record  whether  during  that 
period  the  price  of  oil  advanced  or  receded  from  the  price  at  the  date 
of  the  intended  purchase.  The  only  theory,  then,  on  which  the  plain- 
tiff could  show  actual  damage  or  loss  is  on  the  supposition  that,  if  he 
had  bought  on  the  9th  of  November,  he  might  and  would  have  sold 
on  the  10th.  It  is  the  difference  between  the  prices  on  those  two  days 
which  was  in  fact  allowed  as  the  measure  of  his  loss. 

It  is  clear  that  in  point  of  fact  the  plaintiff  has  not  suffered  any 
actual  loss.  No  transaction  was  in  fact  made,  and  there  being  neither 
a  purchase  nor  a  sale,  there  was  no  actual  difference  between  the  sums 
1  This  short  statement  is  substituted  for  the  original.  —  Ed. 


752  WESTERN    UNION    TELEGRAPH    CO.    V.    HALL.         [cHAP.    VI. 

paid  and  the  sums  received  in  consequence  of  it,  which  could  be  set 

down  in  a  profit  and  loss  account.    All  that  can  be  said  to  have  been 

lost  was  the  opportunity  of  buying  on  November  9th,  and  of  making 

a  profit  by  selling  on  the  10th,  the  sale  on  that  day  being  purely  con-  >: 

tingent,  without  anything  in  the  case  to  show  that  it  was  even  probable  ■ 

or  intended,  much  less  that  it  would  certainly  have  taken  place.  p 

It  has  been  .well  settled  since  the  decision  in  Masterton  v.  The  Mayor 
of  Brooklyn,  7  Hill,  61,  that  a  plaintiff  may  rightfully  recover  a  loss 
of  profits  as  a  part  of  the  damages  for  breach  of  a  special  contract, 
but  in  such  a  case  the  profits  to  be  recovered  must  be  such  as  would 
have  accrued  and  grown  out  of  the  contract  itself  as  the  direct  and 
immediate  result  of  its  fulfilment.  In  the  language  of  the  Supreme 
Judicial  Court  of  Massachusetts  in  Fox  r.  Harding,  7  Cush.  516: 
"  These  are  part  and  parcel  of  the  contract  itself,  and  must  have  been 
in  the  contemplation  of  the  parties  when  the  agreement  was  entered 
into.  But  if  they  are  such  as  would  have  been  realized  by  the  party 
from  other  independent  and  collateral  undertakings,  although  entered 
into  in  consequence  and  on  the  faith  of  the  principal  contract,  then 
they  are  too  uncertain  and  remote  to  be  taken  into  consideration  as  a. 
part  of  the  damages  occasioned  by  the  breach  of  the  contract  in  suit," 
p.  522.  This  rule  was  applied  by  this  court  in  the  case  of  The  Phila- 
delphia, Wilmington  and  Baltimore  Railroad  v.  Howard,  13  How. 
307.  In  Griffin  v.  Colver,  16  N.  Y.  489,  the  rule  was  stated  to  be  that 
"  the  damages  must  be  such  as  may  fairly  be  supposed  to  have  entered 
into  the  contemplation  of  the  parties  when  they  made  the  contract^ 
that  is,  they  must  be  such  as  might  naturally  be  expected  to  follow  its 
violation;  and  they  must  be  certain  both  in  their  nature  and  in  lespect 
to  the  cause  from  which  they  proceed.  The  familiar  rules  on  this  sub- 
ject are  all  subordinate  to  these.  For  instance,  that  the  damages 
must  flow  directly  and  naturally  from  the  breach  of  contract,  is  a  mere 
mode  of  expressing  the  first;  and  that  they  must  be  not  the  remote  but 
proximate  consequence  of  such  breach,  and  must  not  be  speculative 
or  contingent,  are  different  modifications  of  the  last,"  p.  495. 

In  Booth  r.  Spuyten  Duyvil  Rolling  Mills  C^o.,  60  N.  Y.  487,  the 
rule  was  stated  to  be  that  "the  damages  for  which  a  party  may  re- 
cover for  a  breach  of  a  contract  are  such  as  ordinarily  and  naturally 
flow  from  the  non-performance.  They  must  be  proximate  and  cer- 
tain, or  capable  of  certain  ascertainment,  and  not  remote,  speculative 
or  contingent,"  p.  492.  In  White  v.  Miller,  71  N.  Y.  118,  133,  it  was 
said:  "Gains  pre\'ented,  as  well  as  losses  sustained,  may  be  recovered 
as  damages  for  a  breach  of  contract,  when  they  can  be  rendered  rea- 
sonably certain  by  evidence,  and  have  naturally  resulted  from  the 
breach." 

In  cases  of  executory  contracts  for  the  purchase  or  sale  of  personal 
property  ordinarily,  the  proper  measure  of  damages  is  the  dift'erence 
between  the  contract  price  and  the  market  price  of  the  goods  at  the 


SECT.    III.]       WESTERN   UNION  TELEGRAPH   CO.   V.   HALL.  753 

time  when  the  contract  is  broken.  This  rule  may  be  varied  according 
to  the  principles  established  in  Hadley  v.  Baxendale,  9  Exch.  341; 
S.  C.  23  L.  J.  Ex.  179,  where  the  contract  is  made  in  view  of  special 
circumstances  in  contemplation  of  both  parties.  That  well-known 
case,  it  will  be  remembered,  was  an  action  against  a  carrier  to  recover 
damages  occasioned  by  delay  in  the  delivery  of  an  article,  by  reason 
of  which  special  injury  was  alleged.  In  the  application  of  the  rule  to 
similar  cases,  where  there  has  been  delay  in  delivering  by  a  carrier 
which  amounts  to  a  breach  of  contract,  the  plaintiff  is  not  always 
entitled  to  recover  the  full  amount  of  the  damages  actually  sustained; 
prima  facie  the  damages  which  he  is  entitled  to  recover  would  be  the 
difference  in  the  value  of  the  goods  at  the  place  of  destination  at  the 
time  they  ought  to  have  been  delivered  and  their  value  at  the  time 
when  they  are  in  fact  delivered.    Horn  v.  Midland  Railway  Co.,  L.  R. 

8  C.  P.  131;  Cutting  v.  Grand  Trunk  Railway  Co.,  13  Allen,  381.  Any 
loss  above  this  difference  sustained  by  the  plaintiff,  not  arising  directly 
from  the  delay,  but  collaterally  by  reason  of  special  circumstances,  can 
be  recovered  only  on  the  ground  that  these  special  circumstances,  being 
in  view  of  both  parties  to  the  contract,  constituted  its  basis.  Simpson 
r.  London  &  Northwestern  Railway  Co.,  1  Q.  B.  D.  274.  So  the  loss 
of  a  market  may  be  made  an  element  of  damages  against  a  carrier  for 
delay  in  deli\ery,  where  it  was  understood,  either  expressly  or  from 
the  circumstances  of  the  case,  that  the  object  of  deli^•el•J'  was  to  get 
the  benefit  of  the  market.  Pickford  v.  Grand  Junction  Railway  Co., 
12  M.  &  \V.  766.     In  Wilson  v.  Lancashire  &  Yorkshire  Railway  Co., 

9  C.  B.  N.  S.  632,  the  plaintiff  was  held  entitled  to  recover  for  the  de- 
terioration in  the  marketable  value  of  the  cloth  by  reason  of  delay  in 
the  delivery,  whereby  the  season  for  manufacturing  it  into  caps,  for 
which  it  was  intended,  was  lost. 

The  same  rule,  by  analogy,  has  been  applied  in  actions  against  tele- 
graph companies  for  delay  in  the  delivery  of  messages,  whereby  there 
has  been  a  loss  of  a  bargain  or  a  market.  Such  was  the  case  of  L'nited 
States  Telegraph  Co.  v.  Wenger,  55  Penn.  St.  262.  There  the  message 
ordered  a  purchase  of  stock,  which  advanced  in  price  between  the  time 
the  message  should  have  arrived  and  the  time  when  it  was  purchased 
under  another  order,  and  the  advance  was  held  to  be  the  measure  of 
damages.  There  was  an  actual  loss,  because  there  was  an  actual  pur- 
chase at  a  higher  price  than  the  party  would  have  been  compelled  to 
pay  if  the  message  had  been  promptly  delivered,  and  the  circumstances 
were  such  as  to  constitute  notice  to  the  company  of  the  necessity  for 
prompt  delivery.  The  rule  was  similarly  applied  in  Squire  v.  Western 
Union  Telegraph  Co.,  98  Mass.  232.  There  the  defendant  negligently 
delayed  the  delivery  of  a  message  accepting  an  offer  to  sell  certain 
goods  at  a  certain  place  for  a  certain  price,  whereby  the  plaintiff  lost 
the  bargain,  which  would  have  been  closed  by  a  prompt  delivery  of  the 
message.    It  was  held  that  the  plaintiff  was  entitled. to  recover,  as  com- 


754  WESTERN   UNION   TELEGRAPH   CO.    V.    HALL.        [CH.\P.    VI. 

pensation  for  his  loss,  the  amount  of  the  difference  between  the  price 
which  he  agreed  to  pay  for  the  merchandise  by  the  message,  which 
if  it  had  been  duly  dehvered  would  have  closed  the  contract,  and  the 
sum  which  he  would  have  been  compelled  to  pay  at  the  same  place  in 
order,  by  the  use  of  due  diligence,  to  have  purchased  a  like  quality 
and  quantity  of  the  same  species  of  merchandise.  There  the  direct 
consequence  and  result  of  the  delay  in  the  transmission  of  the  mes- 
sage was  the  loss  of  a  contract  which,  if  the  message  had  been  duly 
delivered,  would  by  that  act  have  been  completed.  The  loss  of  the 
contract  was,  therefore,  the  direct  result  of  the  defendant's  negligence, 
and  the  value  of  that  contract  consisted  in  the  difference  between  the 
contract  price  and  the  market  price  of  its  subject-matter  at  the  time 
and  place  when  and  where  it  would  have  been  made.  The  case. of 
True  V.  International  Telegraph  Co.,  60  Maine,  9,  cannot  be  dis- 
tinguished in  its  circumstances  from  the  case  in  98  Mass.  232,  and 
was  governed  in  its  decision  by  the  same  rule.  The  cases  of  Manville 
V.  Telegraph  Co.,  37  Iowa,  214,  220,  and  of  Thompson  v.  Telegraph 
Co.,  64  Wisconsin,  531,  were  instances  of  the  application  of  the  same 
rule  to  similar  circumstances,  the  difference  being  merely  that  in 
these  the  damages  consisted  in  the  loss  of  a  sale  instead  of  a  purchase 
of  property,  which  was  prevented  by  the  negligence  of  the  defendant 
in  the  delivery  of  the  messages.  In  these  cases  the  plaintiffs  were 
held  to  be  entitled  to  recover  the  losses  in  the  market  value  of  the 
property  occasioned,  which  occurred  during  the  delay. 

Of  course  where  the  negligence  of  the  telegraph  company  consists, 
not  in  delaying  the  transmission  of  the  message,  but  in  transmitting  a 
message  erroneously,  so  as  to  mislead  the  party  to  whom  it  is  addressed, 
and  on  the  faith  of  which  he  acts  in  the  purchase  or  sale  of  property, 
the  actual  loss  based  upon  changes  in  market  value  are  clearly  within 
the  rule  for  estimating  damages.  Of  this  class  examples  are  to  be 
found  in  the  cases  of  Turner  v.  Hawkeye  Telegraph  Co.,  41  Iowa,  458, 
and  Rittenhouse  v.  Independent  Line  of  Telegraph,  44  N.  Y.  263;  but 
these  have  no  application  to  the  circumstances  of  the  present  case. 
Here  the  plaintiff  did  not  purchase  the  oil  ordered  after  the  date  when 
the  message  should  have  been  delivered,  and  therefore  was  not  re- 
quired to  pay,  and  did  not  pay,  any  advance  upon  the  market  price 
prevailing  at  the  date  of  the  order;  neither  does  it  appear  that  it  was 
the  purpose  or  intention  of  the  sender  of  the  message  to  purchase  the 
oil  in  the  expectation  of  profits  to  be  derived  from  an  immediate  re- 
sale. If  the  order  had  been  promptly  delivered  on  the  day  it  was  sent, 
and  had  been  executed  on  that  day,  it  is  not  found  that  he  would  have 
resold  the  next  day  at  the  advance,  nor  that  he  could  have  resold  at  a 
profit  at  any  subsequent  day.  The  only  damage,  therefore,  for  which 
he  is  entitled  to  recover  is  the  cost  of  transmitting  the  delayed  message. 

The  judgment  is  accordingly  reversed,  and  the  cause  remanded,  with 
directions  to  enter  a  judgment  jor  the  plaintiff  for  that  sum  merely. 


SECJ.    III.]      PACIFIC    STEAM   WHALING   CO.    V.    PACKERS'    ASSOC.      755 


PACIFIC  STEAM  WHALING  CO.   v.  ALASKA  PACKERS' 

ASSOCIATION. 

Supreme  Court  of  California,  1903. 

[Reported  138  Cal.  632.] 

McFarland,  J.  Each  of  the  parties  to  this  action  is  a  corporation, 
and  at  the  time  of  the  occurrences  out  of  which  the  Htigation  here  in- 
volved arose  both  of  the  parties  were  engaged  in  catching  salmon  along 
the  shore  of  Alaska,  at  and  near  the  mouth  of  Karluk  River,  in  and 
near  and  about  Tanglefoot  Bay,  Karluk  Beach,  and  Tanglefoot  Beach, 
and  each  had  plants  in  the  vicinity  at  which  the  fish  were  canned. 
The  action  is  for  damages  for  alleged  wrongful  acts,  by  which  defend- 
ant, during  the  fishing  season  of  1897,  unlawfully  and  forcibly  excluded 
plaintiff  from  fishing  in  the  ocean  in  the  localities  above  mentioned. 
The  jury  returned  a  verdict  for  plaintiff  in  the  sum  of  $14,000,  for 
which  amount  judgment  was  rendered.  Defendant  appeals  from  the 
judgment  and  from  an  order  denying  its  motion  for  a  new  trial.   .   .   . 

Upon  the  subject  of  actual  damages  there  was  no  error  in  admitting 
evidence  or  instructing  the  jury.  Plaintiff  claimed  that  it  had  been 
forcibly  excluded  by  defendant  from  salmon-fishing  in  the  said  waters 
during  the  fishing  season  of  1897.  The  court  had  instructed  the  jury 
on  that  point  as  follows:  "I  instruct  you  that  sufficient  reason  would 
exist  for  plaintiff  to  desist  from  further  attempt  to  fish  if  the  acts  and 
declarations  of  defendant's  agent  were  such  as  would  satisfy  a  reason- 
able man  that  further  attempts  to  fish  would  be  useless,  because  they 
would  be  met  and  frustrated  bj'  force";  and  there  was  e^■idence  to 
warrant  the  jury  in  finding  the  fact  referred  to  in  the  instruction.  The 
general  nature  of  the  evidence  as  to  actual  damages  to  which  defendant 
objected  and  which  plaintiff  was  allowed  to  introduce  was  this:  Evi- 
dence tending  to  show  how  many  fish  plaintiff  could,  with  reasonable 
probability,  have  taken  from  the  fishing-grounds  in  question  if  it  had 
not  been  excluded  therefrom  by  the  unlawful  acts  of  defendant,  —  the 
value  of  such  fish,  and  the  profits  which  would  reasonably  have  accrued 
to  the  plaintiff  from  the  fish  when  canned.  Plaintiff  was  also,  in  this 
connection,  allowed  to  introduce  evidence  tending  to  show  how  many 
fish  defendant  actually  did  take  in  these  fisheries  during  the  said  season. 
The  court  also  instructed  the  jur}^  as  follows :  "  I  instruct  you  that  if 
you  find  that  defendant  or  its  employees  or  servants  were,  under  the 
law  as  given  you,  guilty  of  acts  constituting  an  unla"wful  interference 
with  plaintiff's  pursuit  of  a  lawful  business  in  a  lawful  way,  then  you 
must  assess  as  damages  the  amount  which  will  conipensate  plaintiff 
for  all  the  detriment  proximately  caused  thereby.  I  instruct  you  that 
if  you  find  that  plaintiff  suffered  damage  by  reason  of  the  alleged 


756  LAJVIOND   V.    SEA    COAST    CANNING   COMPANY.       [CHAP.    V^I. 

wrongful  acts  of  the  defendant,  or  of  its  servants  and  employees,  then 
in  assessing  the  amount  of  damages  caused  to  plaintiff  by  the  alleged 
wrongful  acts,  you  may  consider  the  loss,  if  any,  to  plaintiff  of  probable 
profits  in  its  business."  The  position  of  defendant  is,  that  the  evidence 
pointed  to  damages  too  much  in  the  nature  of  mere  speculative  profits 
to  be  admissible  at  all. 

We  do  not  think  that  in  these  rulings  of  the  court  as  to  evidence,  or 
in  giving  the  said  instructions,  there  was  any  error.  The  profits  sought 
to  be  pro\ed  were  not  so  remote,  uncertain,  prospective,  or  conjectural 
as  to  be  entirely  beyond  the  range  of  legitimate  damages.  Of  course, 
evidence  of  such  damages  should  be  closely  scrutinized  by  a  jury,  and 
claims  merely  fanciful  and  beyond  reasonably  proximate  certainty 
should  be  by  them  excluded;  but  the  jury  in  this  case  were  suitably 
instructed  and  warned  on  that  subject,  and  it  is  to  be  presumed  that 
they  did  their  duty  in  the  premises.  With  respect  to  this  kind  of 
damage,  of  course,  there  cannot  be  the  absolute  certainty  possible  in 
many  plainer  cases;  but  a  wrongdoer  cannot  entirely  escape  the  con- 
sequences of  his  unlawful  acts  merely  on  account  of  the  difficulty  of 
proving  damages;  he  can  do  so  only  where  there  is  no  possibility  of  a 
reasonably  proximate  estimation  of  such  damages,  which  is  not  the 
fact  in  the  case  at  bar.  The  waters  in  question  here  constituted  a 
special  salmon  fishery,  —  where  those  fishes  were  to  be  found  in  great 
abundance,  —  and  the  proposition  that  damages  evidently  suffered 
by  plaintiff  from  the  wTongful  act  of  the  defendant  by  which  plaintiff 
was  excluded  from  exercising  the  clearly  valuable  right  of  fishing  in 
those  waters  are  entirely  beyond  legal  proof,  cannot  be  maintained. 
We  think  that  on  this  point  the  case  at  bar  is  within  the  rule  announced 
in  Shoemaker  v.  Acker,  116  Cal.  239,  and  cases  there  cited. 


LAMOND  V.   SEA  COAST  CANNING   COMPANY 
Supreme  Judicial  Coitrt  of  Maine,  1911. 

[Reported  108  Me.  155.] 

Whitehouse,  J.  In  this  action  the  plaintiff  seeks  to  recover  dam- 
ages alleged  to  have  been  caused  by  the  unlav/ful  act  of  the  defendant 
in  dumping  into  Passamaq noddy  bay  and  the  surrounding  waters  large 
quantities  of  decayed  and  refuse  sardines  packed  in  oil  in  such  prox- 
imity to  a  fish  weir  lawfully  maintained  by  the  plaintiff,  that  the  punc- 
tured cans  were  swept  by  the  action  of  the  tide  into  and  around  the 
plaintiff's  weir  and  the  fish  thereby  prevented  from  going  into  it.    .  .    . 

The  burden  was  upon  the  plaintiff  to  establish  by  evidence  the 
prospectiA'e  profits  of  which  he  claimed  to  have  been  deprived  by  the 
unlawful  act  of  the  defendant.    They  cannot  be  estimated  by  the  court 


SECT.    III.]        LAMOXD    r.    SEA    COAST   CANNING    COMPANY.  757 

without  reasonably  definite  and  reliable  evidence  to  justify  the  finding. 
In  view  of  the  testimony  in  this  case  showing  the  irregularity  with 
which  the  fish  enter  these  weirs  without  any  apparent  reason  therefor, 
the  plaintiff  himself  has  not  attempted  to  make  any  estimate  of  his 
damages.  The  only  analogous  case  to  which  the  attention  of  the  court 
has  been  called  in  which  the  right  of  the  plaintiff  to  recover  for  the  loss 
of  profits  from  his  business  of  fishing  was  brought  directly  in  question, 
is  that  of  Wright  v.  Mulvaney,  78  Wis.  89  (46  N.  W.  1045). 

In  that  case  the  plaintiff  had  a  "pot  net"  or  "pound"  set  in  the 
river,  which  was  injured  by  the  defendant's  steam  tug.  The  testimony 
tended  to  show  that  before  the  injury  the  plarintiff  derived  a  profit  of 
from  $40  to  $50  per  day  every  alternate  day,  and  that  it  would  have 
required  about  ten  days  to  restore  the  injured  net,  had  it  been  restored. 
No  other  testimony  was  introduced  bearing  upon  the  question  of 
profits,  and  the  jury  assessed  the  damages  for  profits  at  $200.  But  the 
court  held  that  such  prospective  profits  were  not  recoverable  upon  this 
evidence.  In  the  opinion  it  is  said:  "There  was  no  testiniony  as  to 
whether  the  conditions  of  successful  fishing  remained  for  ten  days  after 
the  injury  as  favorable  as  they  were  immediately  before  the  same,  — 
none  to  show  that  the  weather  continued  favorable  during  the  ten 
days;  that  storms  did  not  intervene  to  interrupt  the  business;  that  the 
fish  continued  to  run  over  the  same  grounds  in  equal  abundance;  that 
other  fishermen  operating  in  the  vicinity  were  eciually  as  successful  in 
their  business  after  as  before  the  injury;  nor  that  the  market  price  of 
fish  remained  as  high.  Without  any  testimony  concerning  these  essen- 
tial conditions,  the  jury  must  have  made  their  assessment  of  damages 
of  plaintiff's  business  largely  upon  mere  conjecture.  They  must  have 
assumed  without  proof  that  a  business  proverbially  uncertain  in  results 
depending  for  its  success  upon  numerous  conditions  which  the  persons 
engaged  therein  cannot  control  or  influence,  and  the  presence  or  ab- 
sence of  which  at  a  future  time  cannot  be  foretold  with  any  degree  of 
accuracy,  would  have  continued  after  the  net  was  injured  to  be  just  as 
profitable  as  it  was  before  the  injury.  Such  an  assumption  under  such 
circumstances,  is  unwarranted  in  the  law,  and  probably  we  should  be 
compelled  to  reverse  this  judgment  for  want  of  sufficient  evidence  to 
support  the  assessment  of  damages  for  profits,  even  though  it  should 
be  held  that,  under  proper  proofs,  the  plaintiff  might  recover  pro- 
spective profits.  But  we  are  of  the  opinion  that  prospective  profits 
cannot  properly  be  awarded  as  damages  in  this  case.  The  reason 
therefor  has  already  been  suggested,  which  is  that  under  any  state  of 
testimony,  in  view  of  the  character  and  conditions  of  the  business,  the 
jury  could  have  no  sufficient  basis  for  ascertaining  such  prospective 
profits.  At  best,  the  assessment  thereof  must  necessarily  rest  largely 
upon  conjecture.  This  feature  of  the  case  brings  it  within  the  rule  of 
Bierbach  v.  Good\ear  Rubber  Company,  54  Wis.  208,  and  Anderson  v. 
Sloan,  72  Wis.  556,  antl  the  cases  cited  in  the  opinion  therein." 


758  SAPWELL   V.    BASS.  [CHAP.    VI. 

See  also  13  Cyc.  56,  57;  Ferris  v.  Comstock,  33  Conn.  513,  and  Bar- 
ton V.  Erie  R.  Co.,  73  N.  J.,  Law  12  (62  Atl.  489). 

It  will  be  noticed  that  in  the  case  at  bar  there  was  not  only  positive 
evidence  from  the  plaintiff's  owni  witnesses  of  the  uncertainty  and 
irregularity  of  the  weir  fishing  on  that  shore  but  substantially  the 
same  absence  of  testimony  described  in  Wright  v.  Mulvaney,  supra, 
showing  that  the  conditions  for  successful  fishing  were  as  favorable 
immediately  after  the  injuries  as  they  were  immediately  before.  The 
principle  applied  in  that  case  must  accordingly  be  accepted  as  decisive 
of  the  question  of  prospective  profits  in  the  case  at  bar. 

But  in  that  case  the  plaintiffs  were  allowed  by  the  court  to  retain 
the  damages  awarded  them  by  the  jury  for  the  cost  of  repairing  the 
injured  net  and  the  value  of  the  services  of  the  plaintiffs  and  their 
employees  in  resetting  it.  In  the  case  at  bar  the  plaintiff'  is  entitled 
to  recover  as  damages  the  fair  value  of  his  own  services  and  that  of 
his  "  hired  man  "  in  their  reasonable  endeavor  to  remove  the  obnoxious 
refuse  from  the  weir  and  make  the  operation  of  it  successful  and  profit- 
able. It  appears  from  the  undisputed  evidence  introduced  by  the 
plaintiff  that  it  required  five  weeks  in  1906  and  four  weeks  in  1907  for 
himself  and  his  assistant  to  clean  out  the  weir.  But  they  labored  only 
during  those  portions  of  the  day  when  the  tide  was  favorable,  and  it  is 
the  opinion  of  the  court  that  a  reasonable  compensation  for  their 
services  would  be  $3.00  per  day  in  the  aggregate,  amounting  to  $90  for 
the  year  1906,  and  $72  for  the  year  1907,  and  that  the  plaintiff  is  en- 
titled to  recover  these  sums  with  interest  from  the  date  of  the  writ. 

The  certificate  will  accordingly  be, 

Judgment  for  the  plaintiff  for  $162,  with  interest  from  August  8, 1907. 


SAPWELL  v:   BASS. 
High  Court  of  Justice,  King's  Bench  Division,  1910. 

[Reported  [1910]  2  K.  B.  486.] 

Jelf,  J.  This  action,  which  raised  an  important  question  as  to  the 
measure  of  damages  for  l)reach  of  contract,  was  brought  by  Colonel 
Sapwell  against  Sir  William  Bass,  and  was  tried  before  me  without  a 
jury  at  the  last  Norwich  Winter  Assizes,  and  afterwards  heard  on 
further  consideration  in  London. 

The  plaintiff  is  a  well-known  and  experienced  breeder  of  racehorses, 
and  the  defendant.  Sir  William  Bass,  was  the  owner  of  a  famous  stallion 
called  Cyllene. 

On  April  21,  1909,  the  plaintiff  sued  the  defendant  for  damages  for 
breach  of  an  alleged  contract  made  by  correspondence  in  December, 
1907,  and  January,  1908,  whereby  it  was  agreed  between  the  plaintiff 
and  Lord  Marcus  Beresford  (as  agent  for  the  defendant)  that  CyUene 


SECT.    III.]  ~  SAPWELL  V.   BASS.  759 

should  in  the  season  of  1909  serve  one  of  the  plaintiff's  brood  mares  to 
be  selected  by  the  plaintiff  for  a  fee  of  £315  to  be  paid  at  the  time  of 
the  said  service  by  the  plaintiff  to  the  defendant. 

In  the  summer  of  1908  the  defendant,  without  the  consent  of  the 
plaintiff  and  without  previous  notice  to  him,  sold  Cyllene  for  £30,000 
to  go  to  South  America.   .   .   . 

The  question  of  damages  presented  formidable  and  to  my  mind  in- 
superable difficulties.  It  is  clear  that  if  the  300  guineas  had  been  paid 
the  plaintiff  could  have  recovered  it  back.  But  he  had  paid  nothing. 
For  obtaining  the  service  of  Cicero  the  plaintiff  had  to  pay  a  fee  of  £  100 
only  instead  of  300  guineas.  No  other  expenses  had  been  incurred  or 
steps  taken  by  the  plaintiff  in  special  preparation  for  the  expected 
service  by  Cyllene,  for  such  expenses  and  steps  were  all  available  for 
the  service  by  Cicero.  Neither  party  could  suggest  nor  could  I  discover 
any  tertium  quid  by  way  of  compensation. 

The  suggestion  of  Jervis,  C.  J.,  and  Willes,  J.,  in  Fletcher  v.  Tay- 
leur,  that  the  average  profit  made  by  the  use  of  the  chattels  not  de- 
livered should  by  analogy  with  the  interest  on  money  not  paid  be  the 
amount  of  damages,  has  not  been  adopted  as  a  separate  rule,  and 
moreover  would  not  be  applicable  to  the  present  case.  It  seems  to 
follow  that  the  damages,  if  any,  applicable  in  this  case  would  be  on 
the  one  hand  the  estimated  loss  of  prospective  profit  on  the  lines  put  for- 
ward by  the  plaintiff  in  the  above  correspondence  and  the  evidence  which 
was  given  in  respect  thereof,  or  on  the  other  hand  nominal  damages. 

Now  it  will  be  observed  that  the  expectation  of  profit  arising  from 
the  contract  at  the  time  it  was  made  was  not  and  could  not  be  based 
on  any  tangible  market  price  of  the  expected  progeny  of  Cyllene  and 
the  undetermined  mare,  nor  on  the  enhanced  prospective  price  of  such 
mare,  but  upon  a  succession  of  contingencies  which  could  not  be  fore- 
told more  than  a  year  beforehand,  such  as  the  following:  —  (1.)  That 
Cyllene  would  be  alive  and  well  at  the  time  of  the  intended  service. 
(2.)  That  the  mare  sent  would  be  a  well-bred  one,  and  that  the  plain- 
tiff would  for  his  own  sake  and  without  any  obligation  towards  the 
defendant  make  a  good  and  suitable  selection  of  such  mare.  (3.)  That 
the  mare  sent  would  not  prove  l)arren,  which  had  happened  to  another 
mare  sent  by  the  plaintiff  to  Cyllene.  (4.)  That  the  mare  sent  would 
not  slip  her  foal,  and  that  such  foal  would  be  born  alive  and  would  be 
strong  and  healthy.  (5.)  The  chance  whether  it  would  be  a  colt  or  a 
filly,  the  former  being  more  valuable.  (6.)  That  the  foal  would  be  all 
right  when  offered  for  sale.  (7.)  That  the  relative  reputations  of 
Cyllene  and  other  sires  and  their  respective  foals  would  be  the  same  in 
1909  as  in  1908.  (8.)  That  no  substitute  for  Cyllene  (e.g.,  Cyllene's 
son  Cicero)  available  in  1909  would  equal  or  excel  Cyllene  in  public 
estimation  or  in  results.  (9.)  That  Cicero's  offspring  would  not  com- 
mand as  good  a  price  as  Cyllene's. 

Now  in  a  case  like  this,  where  there  is  obviously  no  actual  market 


7G0  SAPWELL  l\    BASS.  [CIL\P.   YI. 

price  to  guide  one,  and  where  there  is  not  in  the  contract  any  Hquidated 
sum  agreed  on  for  damages,  one  could  only  rely  on  the  weighing  of 
chances.  It  was  not  contended  that  the  contract  was  one  of  insurance, 
or  that  the  fee  of  300  guineas  payable  for  the  service  by  Cyllene  included 
any  premium  payable  to  the  defendant  for  entering  into  such  an  oner- 
ous contract.  But  the  law  in  general  regards  damages  which  depend 
entirely  on  chances  as  too  remote  and  therefore  irrecoverable.  The 
cases  seem  to  shew  that  the  line  may  sometimes  be  diificult  to  draw 
between  an  estimate  of  damage  based  on  probabilities,  as  in  Simpson  v. 
London  and  North  Western  Ry.  Co.,  where  Cockburn,  C.  J.,  says, 
"To  some  extent,  no  doubt,  they  (the  damages)  must  be  matter  of 
speculation,  but  that  is  no  reason  for  not  awarding  any  damages  at 
all,"  and  a  claim  for  damages  of  a  totally  problematical  character,  but 
I  think  that  the  present  case  is  well  over  the  line.  The  following  pas- 
sage from  Mayne  on  Damages,  8th  ed.,  p.  11,  forms,  I  think,  a  strong 
argument  in  favour  of  the  damages  in  the  present  case  being  only 
nominal :  —  "  The  principle  of  all  these  cases  seems  to  be  that  in  matters 
of  contract  the  damages  to  which  a  party  is  liable  for  its  breach  ought 
to  be  in  proportion  to  the  benefit  he  is  to  receive  from  its  performance. 
Now  this  benefit,  the  consideration  for  his  promise,  is  always  measured 
by  the  primary  and  intrinsic  worth  of  the  thing  to  be  given  for  it,  not 
by  the  ultimate  profit  which  the  party  receiving  it  hopes  to  make 
when  he  has  got  it.  .  .  .  The  price  is  based  on  the  market  value  of  the 
thing  sold.  ...  It  is  obviously  unfair,  then,  that  either  party  should 
be  paid  for  carrying  out  his  bargain  on  one  estimate  of  its  value,  and 
forced  to  pay  for  failing  in  it  on  quite  a  different  estimate.  This  would 
be  making  him  an  insurer  of  the  other  party's  profits  without  any 
premium  for  undertaking  the  risk." 

In  Watson  v.  Ambergate,  Nottingham,  and  Boston  Ry.  Co.,  which 
is  commented  upon  in  Mayne  on  Damages,  Sth  ed.,  p.  70,  Patteson,  J., 
seemed  to  think  that  the  chance  of  a  prize  might  be  taken  into  account 
in  estimating  the  damages  for  breach  of  contract  in  sending  a  machine 
for  loading  barges  by  railway  too  late  for  a  show,  but  Erle,  J.,  appeared 
to  think  that  this  damage  was  too  remote.  The  case  went  off  on  an- 
other point,  but  I  incline  to  think  that  the  view  of  Erle,  J.,  was  the 
correct  one,  as  the  chance  of  winning  a  prize  was  not,  in  my  opinion,  of 
sufficiently  ascertainable  value  at  the  time  the  contract  was  made  to 
be  within  the  contemplation  of  the  parties.  Moreover,  the  contin- 
gencies in  the  present  case  are  far  more  numerous  and  uncertain  than 
in  the  case  cited. 

The  American  decisions  are  collected  in  Sedgwick  on  Damages,  Sth 
ed.,  vol.  1,  pp.  245  et  seq.,  277,  292-294.  The  principle  above  discussed 
is  clearly  laid  down,  and  it  is  shewn  that  in  order  to  be  recoverable 
damages  for  loss  of  profit  must  not  only  naturall\-  flow  from  the  breach 
or  be  at  the  time  of  contract  in  the  contemplation  of  both  parties,  but 
that  the  amount  also  can  be  ascertained  with  reasonable  certaintv. 


SECT.    III.]  CHAPLIN   V.    HICKS.  761 

Now  in  the  present  case,  although  the  defendant  must  be  taken  to 
have  known  the  plaintiff's  general  business  object  in  making  the  bar- 
gain and  his  expectation  of  commercial  profit  in  making  it,  I  do  not 
consider  that  the  plaintiff's  suggested  damage  was  the  reasonable  and 
natural  result  of  the  defendant's  breach,  or  that  it  could  have  been 
within  the  contemplation  of  both  parties  at  the  time  of  contract  made 
according  to  the  rule  in  Hadley  v.  Baxendale  and  other  cases  of  the 
same  kind.  I  therefore  decide  this  case  on  the  ground  that  there  is  no 
evidence  of  any  legal  damage  arising  from  the  breach  of  contract,  and  if 
there  had  been  a  jury  I  should  have  so  directed  them. 

If  I  had  been  at  liberty  to  speculate  on  the  chances,  I  might  or  might 
not  have  come  to  the  same  conclusion  upon  the  facts.  The  price  paid 
for  the  service  by  Cicero  was  £lOO  instead  of  the  £315  which  the  plain- 
tiff' would  have  had  to  pay  for  the  service  of  Cyllene,  and  the  plaintiff 
therefore  starts  with  £215  to  the  good  by  properly  diminishing  the 
damages  as  best  he  could,  and  looking  to  all  the  accumulated  chances 
which  have  to  be  taken  into  account  as  above  enumerated,  it  is  doubt- 
ful whether  any  tribunal  would  find  that  the  plaintiff  lost  by  having 
a  foal  of  Cicero  and  Dear  Mary,  instead  of  a  foal  of  Cyllene  and  Dear 
Mary,  enough  to  overtop  the  initial  gain,  even  if  it  were  clear  that  the 
difference  between  the  value  of  a  foal  by  Cyllene  and  of  a  foal  by  Cicero 
could  under  all  the  circumstances  be  put  as  high  as  £215.  I  prefer, 
however,  not  to  prejudice  either  party  on  the  legal  question  of  remote- 
ness of  damage  by  making  a  pure  shot  or  guess  on  a  matter  as  to  which 
I  have  in  my  view  no  legal  basis  of  assessment  to  guide  me. 

I  therefore  reluctantly  hold  that  the  plaintiff  is  not  legally  entitled 
to  judgment  for  at  all  events  more  than  nominal  damages.  I  give 
judgment,  therefore,  for  the  plaintiff  for  Is.  damages. 

C'osts  are  in  my  discretion.  In  an  ordinary  case  in  which  the  plain- 
tiff" recovers  nothing  by  way  of  damages  and  has  substantially  failed,  I 
should  make  him  pay  the«  defendant's  costs,  but  having  regard  to  the 
attitude  taken  up  by  the  defendant  and  his  agent  throughout,  and  to 
the  issues  on  which  the  defendant  has  failed,  I  think  justice  will  be 
done  by  ordering  each  party  to  pay  his  own  costs. 

Judgment  accordingly. 


CHAPLIN  V.  HICKS. 
Court  of  Appeal,  1911. 

[Reverted  [1911]  2  K.  B.  78G.] 

Application  of  the  defendant  for  judgment  or  a  new  trial  in  an 
action  tried  by  Pickford,  J.,  and  a  common  jury. 

On  November  5,  1908,  a  letter  from  the  defendant,  a  w(>ll-known 
actor  and  theatrical  manager,  was  published  in  a  London  daily  news- 


762  CHAPLIN  V.   HICKS.  [CHAP.    VI. 

paper,  in  which  he  said  that,  with  a  view  of  deahng  at  once  with  the 
numerous  appHcations  continually  being  made  to  him  by  young  ladies 
desirous  of  obtaining  engagements  as  actresses,  he  was  willing  that  the 
readers  of  that  newspaper  should  by  their  votes  select  twelve  ladies, 
to  whom  he  would  give  engagements.  On  the  four  following  days  the 
offer  was  published  in  detail  in  the  newspaper.  Ladies  were  invited 
to  send  their  photographs  to  the  newspaper  by  November  24,  1908, 
together  with  an  application  form,  in  which  they  were  to  insert  name, 
address,  and  general  personal  description.  The  defendant,  with  the 
assistance  of  a  committee,  would  then  select  twenty-four  photographs 
to  be  published  in  the  newspaper,  and  the  readers  of  the  newspaper 
would  out  of  those  select  the  twelve  wanners,  to  the  first  four  of  whom 
the  defendant  would  give  an  engagement  for  three  years  at  £5  a  week, 
to  the  second  four  an  engagement  for  three  years  at  £4  a  week,  and  to 
the  third  four  an  engagement  for  three  years  at  £3  a  week.  On  Nov- 
ember 10  the  plaintiff  sent  in  a  signed  application  together  with  her 
photograph.  The  response  to  the  defendant's  offer  was  so  great  that 
in  the  issue  of  December  9  an  alteration  of  the  conditions  of  the  com- 
petition was  announced.  It  was  stated  that  about  six  thousand 
photographs  had  been  sent  in,  and  that  from  these  the  defendant  or 
his  committee  had  selected  about  three  hundred,  which  would  be  pub- 
lished in  the  newspaper  in  the  following  way:  the  United  Kingdom 
Would  be  divided  into  ten  districts,  and  the  photographs  of  the  selected 
candidates  in  each  district  would  be  submitted  to  the  readers  of  the 
newspaper  in  that  district,  who  were  to  select  by  their  votes  those 
whom  they  considered  the  most  beautiful.  After  the  voting  was  com- 
pleted the  defendant  would  make  an  appointment  to  see  the  five 
ladies  in  each  district  whose  photographs  so  published  obtained  the 
greatest  number  of  votes,  and  from  these  fifty  the  defendant  would 
himself  select  the  twelve  who  would  receive  the  promised  engage- 
ments. The  plaintiff  assented  to  the  alteration  in  the  terms  of  the 
competition.  The  fifty  photographs  were  then  published  with  num- 
bers appended  to  them  in  the  newspaper,  together  wath  a  ballot  paper 
on  which  the  reader  of  the  newspaper  registered  his  vote  for  the  par- 
ticular number  which  he  preferred,  and  added  his  signature  and  ad- 
dress. On  January  2,  1909,  the  poll  closed;  the  plaintiff's  name  ap- 
peared at  first  in  her  particular  section,  and  she  became  one  of  the 
fifty  eligible  for  selection  by  the  defendant.  On  January  4  the  de- 
fendant's secretary  WTote  a  letter  to  the  plaintiff  asking  her  to  call  at 
the  Aldwych  Theatre  at  4  o'clock  on  Wednesday  afternoon  [Jan- 
uary 6]  to  see  the  defendant.  This  letter  w^as  addressed  to  the  plain- 
tiff's London  address,  which  was  the  only  address  given  by  the  plaintiff 
in  her  application,  and  was  delivered  there  by  the  first  post  on  Jan- 
uary 5.  The  plaintiff  was  at  that  time  fulfilling  an  engagement  at 
Dundee;  the  letter  was  at  once  re-addressed  to  Dundee,  where  it 
reached  the  plaintiff  on  January  6,  much  too  late  for  her  to  keep  an 


SECT.    III.]  CHAPLIN   V.   HICKS.  763 

appointment  in  London  on  that  afternoon.  The  other  forty-nine 
ladies  kept  their  appointments,  and  on  January  6  the  defendant  made 
his  final  selection  of  the  twelve,  of  whom  the  plaintiff  was  not  one. 
The  plaintiff  made  attempts,  but  unsuccessfully,  to  obtain  another 
appointment  wath  the  defendant,  and  eventually  brought  the  present 
action  to  recover  damages  on  the  ground  that  by  reason  of  the  de- 
fendant's breach  of  contract  she  had  lost  the  chance  of  selection  for 
an  engagement.  The  jury  found,  in  answer  to  a  question  put  to  them 
by  the  learned  judge,  that  the  defendant  did  not  take  reasonable 
means  to  give  the  plaintiff  an  opportunity  of  presenting  herself  for 
selection,  and  assessed  the  damages  at  £100,  for  which  sum  PiCK- 
f'ORD,  J.,  after  argument,  directed  judgment  to  be  entered.  The 
defendant  appealed. 

Vaugh.\n  Williams,  L.  J.  I  am  of  opinion  that  this  appeal  should 
be  dismissed.  .  .  . 

Then  came  the  point  that  was  more  strenuously  argued,  that  the 
damages  were  of  such  a  nature  as  to  be  impossible  of  assessment.  It 
was  said  that  the  plaintiff's  chance  of  winning  a  prize  turned  on  such 
a  number  of  contingencies  that  it  was  impossil)le  for  any  one,  even 
after  arriving  at  the  conclusion  that  the  plaintiff  had  lost  her  oppor- 
tunity by  the  breach,  to  say  that  there  was  any  assessable  value  of 
that  loss.  It  is  said  that  in  a  case  which  involves  so  many  contingen- 
cies it  is  impossible  to  say  what  Avas  the  plaintiff's  pecuniary  loss. 
I  am  unable  to  agree  with  that  contention.  I  agree  that  the  presence 
of  all  the  contingencies  upon  which  the  gaining  of  the  prize  might 
depend  makes  the  calculation  not  only  difficult  but  incapable  of  being 
carried  out  with  certainty  or  precision.  The  proposition  is  that,  when- 
ever the  contingencies  on  which  the  result  depends  are  numerous  and 
difficult  to  deal  wath,  it  is  impossible  to  recover  any  damages  for  the 
loss  of  the  chance  or  opportunity  of  wimiing  the  prize.  In  the  present 
case  I  understand  that  there  were  fifty  selected  competitors,  of  whom 
the  plaintiff  was  one,  and  twelve  prizes,  so  that  the  average  chance 
of  each  competitor  was  about  one  in  four.  Then  it  is  said  that  the 
questions  which  might  arise  in  the  minds  of  the  judges  are  so  numerous 
that  it  is  impossible  to  say  that  the  case  is  one  in  which  it  is  possible 
to  apply  the  doctrine  of  averages  at  all.  I  do  not  agree  with  the  con- 
tention that,  if  certainty  is  impossible  of  attainment,  the  damages 
for  a  breach  of  contract  are  unassessable.  I  agree,  however,  that 
damages  might  be  so  unassessable  that  the  doctrine  of  averages  would 
be  inapplicable  because  the  necessary  figures  for  working  upon  w^ould 
not  be  forthcoming;  there  are  several  decisions,  which  I  need  not  deal 
with,  to  that  effect.  I  only  wish  to  deny  with  emphasis  that,  because 
precision  cannot  be  arrived  at,  the  jury  has  no  function  in  the  assess- 
ment of  damages. 

In  early  daj^s  when  it  was  necessary  to  assess  damages,  no  rules 
were  laid  down  by  the  courts  to  guide  juries  m  the  assessment  of 


764  CHAPLIN  V.   HICKS.  [CHAP.   VI. 

damages  for  breach  of  contract;  it  was  left  to  the  jury  absolutely. 
But  in  course  of  time  judges  began  to  give  advice  to  juries;  as  the 
stress  of  commerce  increased,  let  us  say  between  the  reigns  of  Queen 
Elizabeth  and  Queen  Victoria,  rule  after  rule  was  suggested  by  way  of 
advice  to  juries  by  the  judges  when  damages  for  breach  of  contract 
had  to  be  assessed.  But  from  first  to  last  there  were,  as  there  are  now, 
many  cases  in  which  it  was  difficult  to  apply  definite  rules.  In  the 
case  of  a  breach  of  a  contract  for  the  delivery  of  goods  the  damages 
are  usually  supplied  by  the  fact  of  there  being  a  market  in  which 
similar  goods  can  be  immediately  bought,  and  the  difference  between 
the  contract  price  and  the  price  given  for  the  substituted  goods  in  the 
open  market  is  the  measure  of  damages;  that  rule  has  been  always 
recognized.  Sometimes,  however,  there  is  no  market  for  the  particular 
class  of  goods;  but  no  one  has  ever  suggested  that,  because  there  is  no 
market,  there  are  no  damages.  In  such  a  case  the  jury  must  do  the 
best  they  can,  and  it  may  be  that  the  amount  of  their  verdict  will 
really  be  a  matter  of  guesswork.  But  the  fact  that  damages  cannot 
be  assessed  with  certainty  does  not  relieve  the  wrongdoer  of  the 
necessity  of  paying  damages  for  his  breach  of  contract.  I  do  not  wish 
to  lay  down  any  such  rule  as  that  a  judge  can  in  every  case  leave  it  to 
the  jury  to  assess  damages  for  a  breach  of  contract.  There  are  cases, 
no  doubt,  where  the  loss  is  so  dependent  on  the  mere  unrestricted  voli- 
tion of  another  that  it  is  impossible  to  say  that  there  is  any  assessable 
loss  resulting  from  the  breach.  In  the  present  case  there  is  no  such 
difficulty.  It  is  true  that  no  market  can  be  said  to  exist.  None  of  the 
fifty  competitors  could  have  gone  into  the  market  and  sold  her  right; 
her  right  was  a  personal  right  and  incapable  of  transfer.  But  a  jury 
might  well  take  the  view  that  such  a  right,  if  it  could  have  been  trans- 
ferred, would  have  been  of  such  a  value  that  every  one  would  recognize 
that  a  good  price  could  be  obtained  for  it.  My  \aew  is  that  under 
such  circumstances  as  those  in  this  case  the  assessment  of  damages 
was  unquestionably  for  the  jury.  The  jury  came  to  the  conclusion 
that  the  taking  away  from  the  plaintiff  of  the  opportunity  of  competi- 
tion, as  one  of  a  body  of  fifty,  when  twelve  prizes  were  to  be  distributed, 
deprived  the  plaintift'  of  something  which  had  a  monetary  value.  I 
think  that  they  were  right  and  that  this  appeal  fails. 

Farwell,  L.  J.  ...  It  is  contended  that  the  amount  of  the  plain- 
tiff's loss  is  so  entirely  a  matter  of  pure  chance  as  to  be  incapable  of 
assessment.  I  cannot  for  this  purpose  draw  any  distinction  between 
a  chance  and  a  probability.  In  the  Oxford  English  Dictionary  one  of 
the  definitions  of  "chance"  is  "a  possibility  or  probability  of  any- 
thing happening,  as  distinct  from  a  certainty,"  and  a  citation  is  given 
from  Reid's  Intellectual  Powers,  "  The  doctrine  of  chances  is  a  branch 
of  mathematics  little  more  than  an  hundred  years  old."  The  two 
words  "chance"  and  "probability"  may  be  treated  as  being  prac- 
tically interchangeable,  thougii  it  may  be  that  the  one  is  somewhat 


SECT.    IV.]  HADLEY    V.    B.^:x;EXDALE.  765 

less  definite  than  the  other.  The  necessary  ingredients  of  such  an 
action  are  all  present;  the  defendant  has  committed  a  breach  of  his 
contract,  the  damages  claimed  are  a  reasonable  and  probable  conse- 
quence of  that  breach,  and  loss  has  accrued  to  the  plaintiff  at  the  time 
of  action.  It  is  obvious,  of  course,  that  the  chance  or  probability  may 
in  a  given  case  be  so  slender  that  a  jury  could  not  properly  give  more 
than  nominal  damages,  say  one  shilling;  if  they  had  done  so  in  the 
present  case,  it  would  have  been  entirely  a  question  for  them,  and 
this  court  could  not  have  interfered.  But  in  the  present  competi- 
tion we  find  chance  upon  chance,  two  of  which  the  plaintiff  had  suc- 
ceeded in  passing;  from  being  one  of  six  thousand  she  had  become  a 
member  of  a  class  of  fifty,  and  as  I  understand  it,  was  first  in  her  par- 
ticular di\asion  by  the  votes  of  readers  of  the  paper;  out  of  those  fifty 
there  were  to  be  selected  twelve  prize-winners;  it  is  obvious  that  her 
chances  were  then  far  greater  and  more  easily  assessable  than  when 
she  was  only  one  of  the  original  six  thousand.  If  the  plaintiff'  had 
never  been  selected  at  all,  the  case  would  have  been  very  different; 
but  that  was  not  the  case.  In  my  opinion  the  existence  of  a  con- 
tingency, which  is  dependent  on  the  volition  of  a  third  person,  is  not 
enough  to  justify  us  in  saying  that  the  damages  are  incapable  of 
assessment.  .  .  . 

I  need  only  refer  shortly  to  Sapwell  v.  Bass,  [1910]  2  K.  B.  4S6.  In 
that  case  there  was  no  jury,  and  Jelf,  J.,  exercising  the  functions  of  a 
jury,  did  not  see  his  way  towarrls  assessing  the  damages  at  a  larger 
sum  than  one  shilling;  if  there  had  been  a  jury,  and  the  learned  judge 
had  withdrawn  the  case  from  them  on  the  question  of  the  amount  of 
damages,  I  think  he  would  have  been  wrong.  And  in  the  present  case, 
if  the  jury  had  given  only  a  shilling,  we  could  not  have  interfered.  I 
agree  that  the  appeal  must  be  dismissed. 

Appeal  dismissed. 


SECTION    IV. 
Elements  of  Loss. 

HADLEY  V.   BAXENDALE. 
'  Exchequer,  1854. 

[Reported  23  L.  J.  (N.  S.)  Ex.  179:  9  Ex.  ,341.>] 

This  was  an  action  by  the  plaintiffs,  owners  of  a  steam  grist-mill, 
against  the  defendant,  a  carrier,  for  delay  in  delivering  two  pieces  of 
iron,  being  the  broken  shaft  of  the  mill  of  the  plaintiffs,  by  reason  of 
which  delay  the  engineer  to  whom  they  were  to  be  delivered  was  im- 

^  The  report  of  the  case  is  taken  from  the  Law  Journal.  —  Ed. 


766  HADLEY   V.    BAXENDALE.  [CHAP.    VI. 

al)le  to  supply  a  new  shaft,  and  the  mill  of  the  plaintiffs  was  stopped, 
and  the  plaintiffs  lost  certain  profits  by  the  delay  of  their  business, 
which  was  laid  in  the  declaration  as  special  damage.  The  defendant 
paid  £25  into  court. 

At  the  trial,  before  Crompton,  J.,  at  the  Summer  Assizes  for  Glouces- 
ter, 1853,  it  appeared  that  the  broken  shaft  was  to  be  sent  to  the  en- 
gineer as  a  model  for  a  new  one,  and  at  the  time  of  the  contract  for 
the  carriage  being  made,  the  defendant's  clerk  was  informed  that  the 
mill  was  stopped  and  that  the  shaft  must  be  sent  immediately.  It 
further  appeared  that  its  delivery  at  its  destination  was  delayed  for 
several  days,  and,  consequently,  the  plaintiffs  did  not  receive  the  new 
shaft  back  as  they  expected,  and  their  mill  was  kept  idle.  The  learned 
judge  left  the  question  of  damages  to  the  jury,  although  it  was  objected 
that  the  special  damage  was  too  remote,  and  they  gave  a  verdict  for 
the  plaintiffs  for  £25  beyond  the  sum  paid  into  court. 

A  rule  7iisi  for  a  new  trial  for  misdirection  was  obtained  in  Michael- 
mas term,  on  the  ground  that  the  learned  judge  ought  to  have  told 
the  jury  to  throw  out  of  their  consideration  the  alleged  special  damage.^ 

Alderson,  B.  We  think  that  there  ought  to  be  a  new  trial  in  this 
case;  but,  in  so  doing,  we  deem  it  to  be  expedient  and  necessary  to 
state  explicitly  the  rule  which  the  judge,  at  the  next  trial,  ought,  in 
our  opinion,  to  direct  the  jury  to  be  governed  by  when  they  estimate 
the  damages. 

It  is,  indeed,  of  the  last  importance  that  we  should  do  this;  for,  if 
the  jury  are  left  without  any  definite  rule  to  guide  them,  it  will,  in 
such  cases  as  these,  manifestly  lead  to  the  greatest  injustice.  The 
courts  have  done  this  on  several  occasions;  and,  in  Blake  v.  Midland 
Railway  Company,  21  L.  J.,  Q.  B.,  237,  the  court  granted  a  new  trial 
on  this  very  ground,  that  the  rule  had  not  been  definitely  laid  do^vn 
to  the  jury  by  the  learned  judge  at  Nisi  Prius. 

"There  are  certain  established  rules,"  this  court  says,  in  Alder  v. 
Keighley,  15  M.  &  W.  117,  "according  to  which  the  jury  ought  to 
find."  And  the  court,  in  that  case,  adds:  "and  here  there  is  a  clear 
rule,  that  the  amount  which  would  have  been  received  if  the  contract 
had  been  kept,  is  the  measure  of  damages  if  the  contract  is  broken." 

Now  we  think  the  proper  rule  in  such  a  case  as  the  present  is  this: 
Where  two  parties  have  made  a  contract  which  one  of  them  has  broken, 
the  damages  which  the  other  party  ought  to  receive  in  respect  of  such 
breach  of  contract  should  be  such  as  may  fairly  and  reasonably  be 
considered  either  arising  naturally,  i.e.,  according  to  the  usual  course 
of  things,  from  such  breach  of  contract  itself,  or  such  as  may  reason- 
ably be  supposed  to  have  been  in  the  contemplation  of  both  parties,  at 
the  time  they  made  the  contract,  as  the  probable  result  of  the  breach 
of  it.  Now,  if  the  special  circumstances  under  which  the  contract  was 
actually  made  were  communicated  by  the  plaintiffs  to  the  defendants, 

1  This  statement  of  the  case  is  taken  from  the  report  in  23  L.  J.  (n.  s.)  Ex.  179. 


SECT.    IV.]  HADLEY   V.    BAXENDALE.  767 

and  thus  known  to  both  parties,  the  damages  resulting  from  the  breach 
of  such  a  contract,  which  they  would  reasonably  contemplate,  would 
be  the  amount  of  injury  which  would  ordinarily  follow  from  a  breach 
of  contract  under  these  special  circumstances  so  known  and  communi- 
cated. But,  on  the  other  hand,  if  these  special  circumstances  were 
wholly  unknown  to  the  party  breaking  the  contract,  he,  at  the  most, 
could  only  be  supposed  to  have  had  in  his  contemplation  the  amount 
of  injury  which  would  arise  generally,  and  in  the  great  multitude  of 
cases  not  affected  by  any  special  circumstances,  from  such  a  breach 
of  contract.  For,  had  the  special  circumstances  been  known,  the 
parties  might  have  specially  provided  for  the  breach  of  contract  by 
special  terms  as  to  the  damages  in  that  case;  and  of  this  advantage  it 
would  be  very  unjust  to  deprive  them.  Now  the  above  principles  are 
those  by  which  we  think  the  jury  ought  to  be  guided  in  estimating  the 
damages  arising  out  of  any  breach  of  contract.  It  is  said  that  other 
cases,  such  as  breaches  of  contract  in  the  non-payment  of  money,  or 
in  the  not  making  a  good  title  to  land,  are  to  be  treated  as  exceptions 
from  this,  and  as  governed  by  a  conventional  rule.  But  as,  in  such 
cases,  both  parties  must  be  supposed  to  be  cognizant  of  that  well- 
known  rule,  these  cases  may,  we  think,  be  more  properly  classed  under 
the  rule  above  enunciated  as  to  cases  under  known  special  circum- 
stances, because  there  both  parties  may  reasonably  be  presumed  to 
contemplate  the  estimation  of  the  amount  of  damages  according  to 
tne  conventional  rule.  Now,  in  the  present  case,  if  we  are  to  apply 
the  principles  above  laid  down,  we  find  that  the  only  circumstances 
here  communicated  by  the  plaintiffs  to  the  defendants  at  the  time  the 
contract  was  made,  were,  that  the  article  to  be  carried  was  the  broken 
shaft  of  a  mill,  and  that  the  plaintiffs  were  the  millers  of  that  mill. 
But  how  do  these  circumstances  show  reasonably  that  the  profits  of 
the  mill  must  be  stopped  by  an  unreasonable  delay  in  the  delivery  of 
the  broken  shaft  by  the  carrier  to  the  third  person?  Suppose  the 
plaintiffs  had  another  shaft  in  their  possession  put  up  or  putting  up 
at  the  time,  and  that  they  only  washed  to  send  back  the  broken  shaft 
to  the  engineer  who  made  it;  it  is  clear  that  this  would  be  quite  con- 
sistent with  the  above  circumstances,  and  yet  the  unreasonable  delay 
in  the  delivery  would  have  no  effect  upon  the  intermediate  profits  of 
the  mill.  Or,  again,  suppose  that,  at  the  time  of  the  delivery  to  the 
carrier,  the  machinery  of  the  mill  had  been  in  other  respects  defective, 
then,  also,  the  same  results  would  follow.  Here  it  is  true  that  the 
shaft  was  actually  sent  back  to  serve  as  a  model  for  a  new  one,  and 
that  the  want  of  a  new  one  was  the  only  cause  of  the  stoppage  of  the 
mill,  and  that  the  loss  of  profits  really  arose  from  not  sending  dowm  the 
new  shaft  in  proper  time,  and  that  this  arose  from  the  deky  in  deliver- 
ing the  broken  one  to  serve  as  a  model.  But  it  is  obvious  that,  in  the 
great  multitude  of  cases  of  millers  sending  off  broken  shafts  to  third 
persons  by  a  carrier  under  ordinary  circumstances,  such  consequences 


7G8  GUETZKOW   BROS.    CO.   V.   A.   H.   ANDREWS   &    CO.      [CHAP.   VI. 

would  not,  in  all  probability,  have  occurred;  and  these  special  circum- 
stances were  here  never  communicated  by  the  plaintiffs  to  the  de- 
fendants. It  follows,  therefore,  that  the  loss  of  profits  here  cannot 
reasonably  be  considered  such  a  consequence  of  the  breach  of  contract 
as  could  have  been  fairly  and  reasonably  contemplated  by  both  the 
parties  when  they  made  this  contract.  For  such  loss  would  neither 
have  flowed  naturally  from  the  breach  of  this  contract  in  the  great 
multitude  of  such  cases  occurring  under  ordinary  circumstances,  nor 
were  the  special  circumstances,  whicli,  perhaps,  would  have  made  it  a 
reasonable  and  natural  consequence  of  such  breach  of  contract,  com- 
municated to  or  known  by  the  defendants.  The  judge  ought,  therefore, 
to  have  told  the  jury  that,  upon  the  facts  then  before  them,  they  ought 
not  to  take  the  loss  of  profits  into  consideration  at  all  in  estimating  the 
damages.    There  must  therefore  be  a  new  trial  in  this  case. 

Rule  absolute. 


m 


GUETZKOW  BROTHERS  CO.   v.  A.  H.  ANDREWS  &  CO. 
Supreme  Court  of  Wisconsin,  1896. 

[Reported  92  Wis.  214.] 

This  action  was  brought  by  plaintiff  to  recover  SI, 978,  alleged  to  be 
due  from  the  defendant  for  show  cases  and  other  articles  manufactured 
for  it,  which  articles  it  had  contracted  to  furnish  exhibitors  at  the 
World's  Fair.  The  answer  of  the  defendant  contained  a  denial  of 
liability,  and  set  up  as  a  defense  that  the  articles  were  not  constructed  or 
furnished  according  to  the  contract,  and  were  not  reasonably  worth 
the  contract  price,  or  as  much  as  the  payments  that  had  been  made.  It 
counterclaimed  for  the  amount  of  the  overpayments,  and  also  for 
damages,  claiming  as  such  damages  the  loss  of  profits  it  would  have 
made  if  plaintiff  had  fully  complied  with  the  contract,  and  placing  such 
damages  at  the  difference  between  the  price  it  agreed  to  pay  plaintiff 
and  the  amount  it  was  to  receive  from  the  exhibitors;  the  advance 
being  from  100  to  150  per  cent. 

The  case  was  tried  by  a  referee,  who  found  that  the  goods  were  all 
manufactured  and  furnished  substantially  in  accordance  with  the 
contract,  except  in  some  small  particulars,  for  which  a  rebate  of  the 
purchase  price  was  allowed.  The  evidence  shows  that  the  goods  were 
manufactured  for  a  special  purpose,  that  there  was  no  market  price 
for  such  goods,  and  that  plaintiff  knew,  when  it  contracted  AAath  defend- 
ant, that  it  was  under  contract  to  furnish  the  goods  to  exhibitors  at  the 
World's  Fair,  and  that  the  contract  was  made  by  it  with  plaintiff  to 
enable  it  to  carry  out  the  contract  previously  made  by  it  with  such 
exliibitors.     The  findings  of  the  referee  were  confirmed  by  the  court, 


SECT.   IV.]      GUETZKOW   BROS.    CO.   V.   A.   H.  ANDREWS   &   CO.  769 

and  judgment  was  entered  in  plaintiff's  favor,  from  which  this  appeal 
was  taken. 

Marshall,  J.  .  .  .  All  rules  for  the  assessment  of  damages  for  the 
breach  of  contracts  are  supposed  to  be  founded  upon  principles  of 
natural  justice,  the  intention  being  to  keep  strictly  within  such  princi- 
ples. It  is  on  that  ground  that  the  general  rule  established  for  the  as- 
sessment of  damages  for  the  breach  of  an  executory  contract  to  sell 
and  deliver  property,  i.  e.,  the  difference  between  the  contract  price  and 
the  market  value  at  the  time  and  place  of  the  delivery,  in  order  to  work 
out  natural  justice  in  case  of  special  circumstances,  must  necessarily 
be  broadened  out  to  fit  such  circumstances,  but  only  when  such  special 
circumstances  are  shown  to  have  been  brought  home  to  the  knowledge 
of  both  parties  at  the  making  of  the  contract.  The  leading  case  of 
Hadley  v.  Baxendale,  9  Exch.  341,  states  the  rule  applicable  to  a  case 
of  this  kind,  and  it  has  been  repeatedly  approved  by  this  court.  .  .  . 
To  the  same  effect  are  Borries  r.  Hutchinson,  18  C.  B.  (N.  S.)  445; 
Messmore  v.  N.  Y.  S.  &  L.  Co.,  40  N.  Y.  422;  Booth  v.  Spuyten  Duy\al 
R.  M.  Co.,  60  N.  Y.  487;  McHose  v.  Fuhner,  73  Pa.  St.  365;  Po- 
poskey  v.  Munkwitz,  68  Wis.  322;  Cockburn  v.  Ashland  L.  Co.,  54  Wis. 
619,  and  substantially  all  the  authorities  on  the  subject;  and  if  all 
were  collated  no  more  light  could  be  tlu-own  on  the  general  principle 
involved. 

But  the' question  arises  whether  the  price  to  the  first  vendee  must 
be  communicated  to  the  second  vendor  in  order  that  he  may  be  charged 
with  the  special  rule  of  damages  at  the  suit  of  his  vendee,  in  case  of  a 
breach  on  the  part  of  such  second  vendor;  and  upon  the  precise  point 
here  presented  the  authorities  are  not  numerous.  In  Cockburn  v. 
Ashland  L.  Co.,  54  Wis.  619,  Mr.  Justice  Lyon  said:  "To  bind  the 
defendant  by  a  price  stipulated  for  on  a  resale,  he  must  have  had  notice 
of  such  resale  when  the  contract  was  made,  though,  perhaps,  not  of  the 
contract  price."  But  it  must  be  observed  that  in  the  case  then  under 
consideration  the  circumstance  of  extraordinary  profits  was  not  present; 
that  is,  the  evidence  did  not  disclose  but  that  the  profits  were  such  as 
were  reasonable  and  might  reasonably  have  been  in  contemplation 
by  both  parties  to  the  transaction  when  the  contract  was  made. 

The  question  has  been  many  times  considered  in  the  courts  of  Eng- 
land, and  may  be  said  to  have  been  long  settled,  that  the  second  vendor 
is  only  bound  by  the  terms  of  the  contract  with  the  second  ^•endee  so 
far  as  communicated  to  him  or  he  had  reasonable  ground  to  know  the 
same  by  inference  from  facts  brought  to  his  knowledge.  All  of  the  cases 
refer  to  and  are  founded  upon  the  general  principle  laid  down  in  Hadley 
V.  Baxendale,  9  Exch.  341.  In  Borries  v.  Hutchinson,  18  C.  B.  (N.  S.) 
445,  these  circumstances  were  present:  There  was  a  Russian  contract 
between  the  plaintiff'  and  a  third  person  as  his  vendor.  The  fact  of  the 
contract  was  made  known  to  defendant  but  not  its  terms.  He  knew  the 
goods  were  to  be  delivered  in  Russia,  to  be  transferred  there  by  rail. 


770  GUETZKOW   BROS.    CO.   V.   A.   H.  ANDREWS   &   CO.      [cHAP.   VI. 

He  was  familiar  with  the  fact  that  freight  rates  and  insurance  rates 
were  higher  there  in  winter  than  in  summer.    He  agreed  to  deUver  the 
goods  in  summer,  but  did  not  deliver  until  later,  so  that  the  winter 
rates  of  freight  and  insurance  applied.    It  was  held  that  he  was  bound 
to  know  under  the  circumstances,  at  the  time  he  made  the  contract, 
that  the  late  delivery  would  necessitate  a  loss  on  the  plaintiff  by  reason 
of  increased  freight  and  insurance  charges.     Hence,  he  was  charged 
with  such  loss,  because  so  much  of  the  contract  was  made  known  to 
him  as  charged  him  with  knowledge  that  the  loss  by  increased  freight 
and  insurance  rates  would  naturally  follow  such  late  delivery.    Plaintiff 
was  liable  to  his  Russian  vendee  for  certain  penalties  for  failure  to 
deliver  the  goods  at  the  time  agreed  upon;  but  defendant  was  not  held 
liable  for  such  penalties,  because  knowledge  of  the  terms  of  the  Russian 
contract  in  that  regard  was  not  brought  home  to  him,  nor  facts  that 
would  reasonably  have  suggested  that  element  of  probable  damages  in 
case  of  a  breach.    To  the  same  effect  are  Elbinger  Actien-Gesellschaft  v. 
Armstrong,  L.  R.  9  Q.  B.  473;  Grebert-Borgnis  v.  Nugent,  15  Q.  B.  Div. 
85.    In  this  last  case  there  was  a  contract  between  plaintiff  and  a  third 
person,  as  his  vendee,  for  goods  of  a  particular  kind,  which  contract  was 
made  kno\\'Ti  to  him.    The  contract  was  the  same  as  between  plaintiff 
and  defendant,  except  as  to  price.     The  latter  contract  was  broken. 
There  was  no  market  price  for  the  goods.     There  was  no  question 
but  that  the  difference  in  price  was  no  more  than  a  reasonable  profit. 
He  was  held  liable  for  such  profits  as  one  of  the  natural  consequences 
of  the  breach  of  so  much  of  the  contract  as  was  made  knouTi  to  him. 
Brett,  M.  R.,  stated  the  rule  thus:  "  It  seems  to  me,  according  to  what 
has  been  decided,  that  the  original  vendor  in  such  a  case  is  only  liable, 
in  case  of  a  breach,  for  the  natural  consequences  of  so  much  of  the  sub- 
contract as  was  made  known  to  him.    If  he  were  told,  for  instance,  that 
the  contract  was  that,  if  I  do  not  supply  my  purchaser  with  the  goods 
which  I  am  ordering  from  him,  my  Aendor,  I  shall  have  to  pay  my  pur- 
chaser £4  a  ton  for  every  ton  which  I  do  not  deliver;  then,  if  there  be 
a  breach  of  the  contract,  the  original  vendor  would  have  to  pay  the 
£4  a  ton.     But,  supposing  there  was  in  the  subcontract  between  my- 
self and  my  purchaser,  not  only  that  I  should  pay  £4  a  ton,  but,  besides, 
that  I  should  be  liable  to  a  penalty  of  £5  a  day ;  although  that  is  in  the 
subcontract,  yet  if  that  part  of  it  was  not  made  knowTi  to  the  original 
vendor,  then  for  that  reason,  and  because  it  is  not  a  natural  consequence 
of  his  bargain,  he  would  not  be  liable  to  pay  the  penalty  of  £5  a  day. 
It  seems  to  me  that  the  cases  establish  that  the  original  vendor  is  to  be 
liable  to  so  much  of  the  subcontract  as  was  made  known  to  him,  but 
only  to  that  extent."    To  the  same  effect  are  the  American  authorities, 
all  substantially  adopting  the  rule  of  Hadley  v.  Baxendale.    They  are 
numerous,  and  it  is  sufficient  to  refer  to  Poposkey  v.  Munkwitz,  68  Wis. 
322,  and  Cockburn  v.  Ashland  L.  Co.,  54  Wis.  619,  in  our  own  court. 
Differences  may  be  found  in  the  interpretations  which  courts  have 


SECT.    IV.]      GUETZKOW   BROS.    CO.   V.   A.  H.  ANDREWS   &   CO.  771 

put  on  the  rule  of  Hadley  r.  Baxendale;  but  they  generally  hold  that 
the  price  in  the  first  contract  need  not  be  communicated,  as  intimated 
in  Cockburn  v.  Ashland  L.  Co.,  in  this  court.  They  proceed  upon  the 
principle  all  of  them,  that  knowledge  of  the  first  contract  is  sufficient  to 
bring  home  to  the  second  vendor,  as  an  inference  of  fact,  knowledge 
that  the  price  in  the  first  contract  is  sufficiently  in  advance  of  the 
price  in  the  second  contract  to  allow  a  reasonable  profit  to  the  second 
vendee.  We  venture  to  say  that  no  case  can  be  found,  where  the  price 
was  out  of  all  proportion  to  anything  that  might  be  considered  reason- 
able in  order  to  give  a  fair  profit,  that  the  court  has  held  that  such 
unreasonable  profits  may  be  recovered  as  damages,  where  knowledge 
of  such  unreasonable  profits,  as  a  special  circumstance,  was  not  knowTi 
to  both  parties  at  the  time  of  the  making  of  the  contract.  The  most 
that  is  held  in  Booth  v.  Spuyten  Duyvil  R.  M.  Co.,  60  N.  Y.  487,  cited 
with  confidence  by  appellant,  is  that  the  second  vendor  is  bound  by 
the  price  his  vendee  is  to  recei\e,  unless  it  is  shown  that  such  price  is 
extravagant  or  of  an  unusual  or  exceptional  character.  That  is  as  far 
as  the  New  York  courts  have  gone.  Church,  C.  J.,  said:  "There  is 
considerable  reason  for  the  position  that,  where  the  vendor  is  distinctly 
informed  that  the  purchase  is  made  to  enable  the  vendee  to  fulfill  a 
previous  contract,  and  he  knows  there  is  no  market  price  for  the 
article,  he  assumes  the  risk  of  being  bound  by  the  price  named  in  such 
pre\aous  contract,  whatever  it  may  be."  But  no  such  rule  was  adopted, 
and  no  case  was  there  cited  to  support  such  a  rule,  and  we  are  unable 
to  see  wherein  such  reason  exists.  It  could  only  be  consistent  with  the 
theory  that  the  law  aims  at  complete  compensation  for  all  losses, 
including  gains  prevented  as  well  as  losses  sustained,  without  the  im- 
portant condition,  requisite  to  give  the  rule  the  basic  foundation  upon 
which  all  rules  for  the  assessment  of  damages  are  supposed  to  rest,  that 
of  natural  justice,  which  condition  must  always  be  considered  in  order 
that  the  true  rule  may  be  correctly  stated,  —  that  is,  that  the  dam- 
ages must  be  such  as  can  be  fairly  supposed  to  have  entered  into  the 
contemplation  of  both  parties. 

Further  discussion  of  the  subject  might  be  interesting  but  is  not 
necessary  to  a  decision  of  this  case;  and  the  only  excuse  for  extending 
it  thus  far  is  the  fact  that  it  does  not  appear  that  the  precise  question 
here  presented  has  heretofore  been  decided  by  this  court.  We  state 
the  conclusion  arrived  at  thus : 

When  the  vendor  is  informed  that  the  purchase  is  made  to  enal)le 
the  vendee  to  fulfill  a  contract  which  he  has  theretofore  made  with  a 
third  person,  and  such  vendor  furnishes  the  goods,  but  not  according 
to  contract,  and  there  is  no  market  price  for  such  goods,  and  the  pur- 
chaser furnishes  such  goods  to  such  third  person,  but  is  not  able  to 
recover  of  him  the  price  stipulated  in  the  contract  with  such  third 
person,  by  reason  of  the  breach  of  the  contract  committed  by  such 
vendor,  in  determining  the  damages  for  such  breach  such  vendor  is 


772  BRADLEY   V.    CHICAGO,    MIL.    &    ST.    PAUL   RY.    CO.       [ciIAP.    VI. 

bound  by  the  price  his  vendee  was  to  receive  from  such  third  person, 
whether  such  price  was  communicated  to  him  at  the  time  of  the  making 
of  the  contract  with  his  vendee  or  not,  unless  the  price  was  such  as  to 
yield  an  extraordinary  and  unusual  profit,  which  could  not  reasonably 
have  been  presumed  to  have  been  in  contemplation  by  him  at  the  time 
he  made  his  contract.  In  such  a  case  he  would  not  be  bound  beyond 
such  sum  as  would  yield  a  reasonable  and  fair  profit  to  his  vendee. 
Ordinarily,  the  price  to  the  first  vendee  would,  presumptively,  be  held 
to  be  a  reasonable  price;  but  if  the  facts  in  any  given  case  are  such 
as  to  show  such  price  to  yield  an  extravagant  or  extraordinary  profit, 
the  second  vendor  will  not  be  bound  by  such  price,  in  the  absence  of 
evidence  of  previous  knowledge,  as  before  stated;  and,  in  order  to 
assess  the  damages,  the  court  must  be  put  in  possession  of  sufficient 
evidence  to  enable  it  to  arrive  at  a  conclusion  in  respect  to  what  would 
amount  to  a  reasonable  profit  on  the  transaction. 

It  follows  from  the  foregoing  that  there  was  no  evidence  before  the 
referee  by  which  he  could  have  assessed  in  plaintiff's  favor  damages  for 
loss  of  profits  for  the  breach  of  the  contract  between  it  and  the  defend- 
ant, if  there  was  a  breach. 

After  a  careful  examination  of  the  evidence,  we  are  unable  to  conclude 
that  the  trial  court  erred  in  refusing  to  set  aside  the  referee's  findings  of 
fact  on  the  question  of  whether  the  contract  was  substantially  complied 
with  or  not.  Under  repeated  decisions  of  this  court,  to  warrant  setting 
aside  findings  of  fact  as  against  evidence,  it  must  appear  that  they  are 
against  the  clear  preponderance  of  the  evidence.  Briggs  v.  Hiles,  87 
Wis.  438;  Bacon  v.  Bacon,  33  Wis.  147;  Lord  v.  Devendorf,  54  Wis.  491 ; 
Messersmith  v.  Devendorf,  54  Wis.  498.  Moreover,  it  is  doubtful 
whether  the  bill  of  exceptions  is  sufficiently  certified  to  enable  the 
court  to  review  the  question  of  whether  the  evidence  supports  the 
findings  or  not. 

It  follows,  from  the  foregoing,  that  the  judgment  of  the  superior 
court  should  be  affirmed. 


BRADLEY  v.  CHICAGO,  MILWAUKEE  &  ST.  PAUL 

RAILWAY  CO. 

Supreme  Court  of  Wisconsin,  1896. 

[Reported  94  Wis.  44.] 

PlaintifP,  on  the  4th  day  of  June,  1892,  delivered  some  boxes  of 
goods,  said  to  contain  glass,  to  the  defendant  at  Columbus,  Wisconsin,  to 
be  sliipped  over  its  line  of  railway  to  Deerfield,  Wisconsin.  No  infor- 
mation was  given  to  defendant's  agent  or  otherwise  that  such  boxes 


SECT.    IV.]      BRADLEY  V.   CHICAGO,   MIL.    &    ST.    PAUL  RY.    CO.  773 

contained  property  other  than  glass,  or  of  any  special  use  for  which 
such  goods  were  intended.  Plaintiff  was  a  travelling  photographer, 
and  the  boxes  contained  implements  and  materials  for  use  in  his  busi- 
ness. He  intended  to  engage  in  such  business  at  Deerfield  immediately 
on  the  arrival  of  his  goods  at  that  point,  and,  anticipating  such  arrival, 
he  went  to  Deerfield  on  the  day  the  goods  were  delivered  to  defendant 
for  shipment,  and  arranged  for  pursuing  his  calling  upon  their  arrival. 
After  waiting  a  sufficient  length  of  time  for  the  arrival  of  the  goods  at 
their  destination  if  shipped  direct  and  in  the  regular  course  of  business, 
and  failing  to  receive  the  same,  plaintiff  informed  defendant's  agent  at 
Columbus  of  the  character  of  such  goods,  and  his  purpose  in  shipping 
the  same  to  Deerfield.  Five  days  thereafter  was  a  sufficient  length  of 
time  for  defendant,  with  the  exercise  of  reasonable  diligence,  to  have 
delivered  the  goods  at  Deerfield.  Delivery  was  not  made  till  ten  days 
after  the  expiration  of  such  period.  The  jury  found  specially  the 
facts  as  above  stated,  except  as  they  appeared  uncontro verted  upon 
the  evidence,  and  that  plaintiff  sustained  special  damages  to  the  amount 
of  seventy-five  cents  freight  charges  for  shipping  and  reshipping  goods 
from  Milwaukee,  $6.50  for  rent  of  a  room  and  board  while  plaintiff 
was  unreasonably  delayed  by  failure  to  deliver  the  goods,  and  $80  for 
loss  of  profits  in  his  business  during  such  time.  Defendant  moved  the 
court  on  the  special  verdict  for  judgment,  which  motion  was  denied, 
and  defendant  excepted.  Plaintiff's  attorneys  moved  thte  court  for 
judgment  in  his  favor  for  the  damages  found  by  the  jury  and  costs, 
which  motion  was  granted,  and  the  defendant  appealed. 

Marshall,  J.  The  amount  involved  in  this  action  exclusive  of  costs, 
being  less  than  $100,  as  shown  by  the  judgment,  only  such  questions 
of  law  can  be  considered  as  are  certified  to  this  court  for  that  purpose 
by  the  trial  court.  Such  questions  are  three  in  number,  and  in  sub- 
stance as  follows : 

(1)  The  fact  being  that  the  defendant  did  not,  at  the  time  of  the 
shipment  of  plaintiff's  goods,  know  of  the  purpose,  character,  and 
quality  of  such  goods,  is  it  liable  in  this  action? 

(2)  Some  time  after  the  goods  were  shipped,  and  while  they  were  in 
transit,  plaintiff"  having  notified  the  defendant's  agent  at  Columbus, 
Wisconsin,  of  the  character  and  quality  of  such  goods,  and  the  necessity 
of  plaintiff  to  have  such  goods  at  Deerfield,  Wisconsin,  did  such  notice 
operate  to  modify  the  original  contract  between  plaintiff  and  defend- 
ant, or  impose  any  liability  upon  the  railway  company  for  damages 
in  the  event  of  tlie  goods  not  being  delivered  within  a  reasonable 
time  after  such  notice? 

(3)  The  jury  having  found  that  defendant  was  not  informed,  at 
the  time  the  goods  were  shipped,  of  their  character  and  intended  use, 
but  was  so  informed  some  time  thereafter,  and  that  there  was  an  un- 
reasonable delay  in  the  delivery  thereof  after  su(,"h  notice,  during  which 
time  plaintiff  sustained  loss  of  profits  in  his  business,  as  found  by  the 


774 


LONERGAN  1'.   WALDO. 


[chap.  YI. 


jury,  on  account  of  such  delay,  is  the  plaintiff  entitled  to  recover  of  the 
defendant  the  amount  of  such  loss? 

It  is  only  necessary  to  apply  a  familiar  principle  of  law  in  order  to 
answer  these  questions.  No  principle  of  law  is  more  firmly  established 
than  that  actionable  damages  for  breach  of  contract  are  limited  to  such 
as  may  be  reasonably  considered  to  have  been  in  contemplation  by  the 
parties,  at  the  time  of  the  making  of  such  contract,  as  the  'probable  result 
of  the  breach  of  it.  Guetzkow  Bros.  Co.  v.  A.  H.  Andrews  &  Co.,  92  Wis. 
214.  Such  principle  rules  this  case,  unless  there  is  some  exception 
thereto  which  will  fit  the  special  circumstances  found  by  the  jury  and 
expressed  in  the  questions  submitted.  That  was  obviously  the  view 
the  learned  circuit  judge  took  of  the  matter;  hence  the  necessity  for 
the  second  question,  i.  e.  —  Did  notice  to  the  appellant  of  the  circum- 
stances which  rendered  the  damages  found  by  the  jury  a  probable 
result  of  the  late  delivery  operate  to  modify  the  original  contract  be- 
tween the  parties,  so  as  to  make  the  appellant  liable  for  such  damages? 
Counsel  for  respondent  failed  to  bring  to  our  attention  any  authority 
to  sustain  such  exception  to  the  general  rule,  and,  indeed,  we  are  satis- 
fied that  none  can  be  found,  and  that  the  exigency  of  this  particular  case 
is  not  sufficiently  serious  and  pressing  to  warrant  us  in  disturbing  the 
settled  law  regarding  the  subject,  as  counsel  suggests  that  we  should  do. 
In  Missouri,  K.  &  T.  R.  Co.  v.  Belcher  (Tex.  Sup.),  35  S.  W.  Rep.  6, 
cited  by  appellant's  counsel,  the  same  question  was  considered,  and  it 
was  there  held,  in  effect,  that  notice  to  the  carrier,  after  the  date  of  the 
contract,  that  special  damages  will  arise  from  delay  in  the  shipment,  in 
time  for  him  to  prevent  such  delay,  does  not  render  such  carrier  liable 
for  such  damages. 

It  follows  from  the  foregoing  that  we  answer  each  of  the  questions 
certified  in  the  negative. 


LONERGAN  v.  WALDO. 
Supreme  Judicial  Court  of  Massachusetts,  1901. 

[Reported  179  Mass.  135.] 

Contract  by  a  contractor  to  lay  drain  pipe  to  recover  !S!1,240, 
the  expense  of  re-digging  a  ditch,  washed  in  by  a  rain  storm  by  reason  of 
the  delay  caused  by  the  failure  of  the  defendant  to  deliver  one  hundred 
and  fifty  feet  of  six-inch  drain  pipe  ordered  of  him  and  paid  for  by  the 
plaintiff,  the  defendant  having  agreed  to  deliver  the  pipe  after  notice 
from  the  plaintiff  that  it  was  needed  at  once  and  that,  if  a  rain  storm 
occurred,  the  ditch  would  cave  in.    Writ  dated  January  27,  1899. 

At  the  trial  in  the  Superior  Court,  before  Richardson,  J.,  the  judge 


SECT.    IV.]  LONERGAN  V.   WALDO.  775 

took  the  case  from  the  jury  and,  in  doing  so,  ruled  as  follows :  "  I  do  not 
think  that  the  plaintiff  can  recover  in  this  action,  which  is  an  action  of 
contract,  for  the  damage  done  to  the  trench  or  ditch  by  the  rain  storm, 
or  for  the  expenses  incurred  in  repairing  that  damage.  The  plaintiff's 
counsel  says  that  is  the  damage  which  he  seeks  to  recover  for,  and  the 
other  damage  will  be  so  slight  that  he  does  not  care  to  go  to  the  jury 
upon  it.  In  view  of  this  statement  I  will  order  a  verdict  for  the  defend- 
ant, and  the  plaintiff  excepts." 

The  verdict  was  entered  as  directed;  and  the  plaintiff  alleged  excep- 
tions.   The  evidence  is  fully  described  in  the  opinion  of  the  court. 

Barker,  J.  The  question  whether  the  verdict  was  ordered  rightly 
must  be  considered  upon  the  state  of  facts  most  favorable  to  the 
plaintiff,  which  fairly  could  have  been  found  if  the  case  had  been  left 
to  the  jury. 

He  contended  that  he  was  entitled  to  large  damages  because  of  the 
caving  in  of  a  ditch  resulting  from  the  non-delivery  of  six-inch  drain 
pipe  bought  of  the  defendant  on  May  1,  1893,  for  the  price  of  $13.50, 
then  paid. 

From  his  testimony  it  could  be  found  that  he  first  ordered  the  pipe 
on  Thursday,  April  28,  by  telephone,  and  that  in  giving  the  order  he 
said  that  he  was  out  of  such  pipe,  and  had  his  ditch  all  ready  waiting 
for  it,  and  a  great  deal  of  material  on  the  bank,  and  that  he  could 
not  leave  it  there  very  long;  also  that  the  answer  to  his  order  was  that 
the  pipe  would  be  sent  in  the  afternoon;  that  the  pipe  did  not  come, 
and  the  plaintiff  several  times  told  the  defendant's  agent  over  the 
telephone  that  it  was  necessary  that  the  pipe  should  come  out;  that  if 
a  rain  storm  should  come  there  was  no  possible  chance  of  saving  the 
ditch,  as  they  were  down  twenty-four  feet  and  there  was  a  large  amount 
of  material  on  the  banks. 

The  plaintiff  further  testified  that  on  Monday,  May  1,  he  was  in- 
formed that  the  trouble  was  that  he  had  reached  the  limit  of  his  credit 
with  the  defendant;  that  he  then  went  to  the  latter's  office,  was  referred 
from  one  man  to  another  and  another,  to  the  last  of  whom  he  told  the 
dangerous  condition  he  was  in  at  the  work  and  how  much  he  was  in 
need  of  the  pipe;  that  he  told  them  the  condition  of  the  ditch,  that  it 
was  down  twenty-four  feet,  and  about  nine  or  ten  feet  wide,  and  would 
certainly  cave  in  if  there  should  be  a  rain  storm;  that  they  desired  cash 
for  any  more  goods,  and  thereupon  he  gave  a  check  for  the  price  of  the 
pipe,  and  asked  if  they  would  attend  to  it  right  away;  that  they  said 
that  they  would,  that  the  pipe  would  be  out  there  perhaps  before  he  was, 
and  thereupon  he  went  back  to  the  work;  that  at  noon  on  Monday  the 
pipe  had  not  reached  the  work,  and  he  then  telephoned  again  and 
asked  where  the  pipe  was,  and  was  answered  that  it  would  be  out  there 
in  the  afternoon  sure;  that  he  then  waited  until  Tuesday  morning,  and 
then  asked  by  telephone  why  the  defendant  would  not  send  the  pii)e, 
saying  that  the  defendant  knew  the  plaintiff's  condition  at  the  work. 


776  LONERGAN   V.    WALDO.  [cHAP.    VI. 

and  what  the  consequence  would  be,  and  was  answered  that  the  de- 
fendant would  immediately  attend  to  it;  that  no  pipe  came  on  that  day, 
Tuesday,  May  2,  and  none  came  on  Wednesday,  May  3,  until  after  the 
plaintiff's  men  had  gone  home;  and  that  the  pipe  which  so  came  was 
not  six-inch  pipe  as  ordered  and  purchased  but  eight-inch  pipe  which  he 
could  not  place  in  the  ditch,  and  which  he  would  riot  be  allowed  to  use 
in  it;  also  that  a  rain  storm  came  on  during  Wednesday  night,  and  on 
Thursday  about  noon  the  ditch  was  washed  in,  at  a  loss  to  him  of  about 
$1,240.   .'   .   . 

If  goods  sold  and  paid  for  are  not  delivered  the  measure  of  damages 
usually  is  their  market  value  at  the  time  and  place  at  which  they  should 
have  been  delivered,  with  interest  thereon.  Cutting  v.  Grand  Trunk 
Railway,  13  Allen,  381,  385.  But  special  circumstances  may  make  the 
vendee's  actual  loss  greater  than  the  sum  given  by  this  common  rule. 
When  oA\ing  to  special  circumstances  such  greater  damages  are  in  fact 
sustained  it  is  clear  that  they  cannot  be  recovered  of  the  party  in  fault, 
unless  the  s]5ecial  circumstances  which  made  it  reasonable  to  expect 
that  the  greater  damages  would  naturally  ensue  were,  at  the  time  when 
the  contract  was  made,  within  the  knowledge  of  both  parties.  Batchel- 
der  r.  Sturgis,  3  Cush.  201,  204.  Cutting  v.  Grand  Trunk  Railway,  ubi 
supra.  Scott  v.  Boston  &  New  Orleans  Steamship  Co.  106  Mass.  468, 
471.  Harvey  v.  Connecticut  &  Passumpsic  Rivers  Railroad,  124  Mass. 
421.    Swift  River  Co.  v.  Fitchburg  Railroad,  169  Mass.  326. 

When  the  special  circumstances  are  known  to  both  parties,  it  is  obvi- 
ous that  each  may  have  contracted  with  reference  to  them ;  and  that,  if 
such  was  in  fact  the  case,  the  party  in  fault  may  be  held  justly  to  make 
good  to  the  other  whatever  damages  he  has  sustained  which  were  the 
reasonable  and  natural  consequences  of  a  breach  under  the  circumstance 
so  known  and  with  reference  to  which  the  parties  acted.  In  such  cases 
the  larger  damages  may  be  recovered,  as  having  been  in  the  contempla- 
tion of  both  parties,  and  as  naturally  resulting,  under  the  special  cir- 
cumstances, from  the  breach  itself.  Cutting  v.  Grand  Trunk  Railway, 
ubi  supra.  Townsend  v.  Nickerson  Wharf  Co.  117  Mass.  501,  503. 
Manning  r.  Fitch,  138  Mass.  273,  276. 

But  it  is  equally  obvious  that  when  special  circumstances  exist 
and  are  known  to  both  parties  a  vendor  may  decline  to  assume  any 
larger  responsibility  for  a  breach  of  his  engagement  than  that  to  which 
he  would  be  subjected  by  the  common  rule  of  damages.  If,  in  the 
present  instance,  the  defendant  upon  being  told  of  the  condition  of  the 
ditch  had  notified  the  plaintiff  that  if  the  pipe  should  not  be  delivered 
seasonably  the  defendant  would  not  be  answerable  for  the  loss  if  the 
ditch  should  cave,  it  would  be  unjust  to  hold  the  defendant  for  the  loss. 
The  defendant  cannot  be  so  held,  justly,  unless  at  the  time  of  the  sale  he 
in  substance  assented  that  he  would  be  so  held. 

It  is  not  contended  that  there  was  an  express  assent.  Therefore  the 
vital  question  is  whether  such  assent  could  have  been  found  from  the 


SECT.    IV.]       GLOBE    REFINING    CO.    V.    LANDA    COTTON    CO.  777 

evidence.  When  one  of  two  contracting  parties  stands  in  such  a  rela- 
tion as  compels  him  to  render  the  ser\ace  for  which  he  contracts,  as  for 
instance  in  that  of  a  common  carrier,  it  might  be  unfair  to  infer,  from 
his  undertaking  to  do  the  service  with  knowledge  of  the  special  circum- 
stances and  without  a  protest  that  he  assented  to  any  unusual  obliga- 
tion. Upon  this  question  we  express  no  opinion.  But  in  the  present 
case  the  defendant  was  under  no  obligation  to  sell  the  pipe.  He  could 
contract  or  not  as  he  chose.  If,  knowing  all  the  circumstances,  the 
defendant  sold  the  pipe  without  any  protest  or  statement  that  he  would 
in  no  event  be  liable  for  a  caving  of  the  ditch,  he  might  be  found  by  the 
jury  to  have  assented  to  be  bound  to  pay  damage  for  its  ca\ang  if  that 
should  be  caused  by  breach  of  his  contract  to  deliver  the  pipe.  See 
Grebert-Borgnis  v.  Nugent,  1.5  Q.  B.  D.  85,  89;  Mavme,  Damages,  (5th 
ed.)  41;  Home  v.  Midland  Railway,  L.  R.  8  C.  P.  isi,  141;  Benjamin, 
Sales,  (6th  Am.  ed.)  §§  872,  874. 

Therefore,  upon  the  evidence,  it  was  wrong  to  direct  a  verdict  for  tlie 
defendant. 

Exceptions  sustained. 


GLOBE   REFINING  CO.  v.  LANDA  COTTON  CO. 
Supreme  Court  of  the  Ignited  States,  1903. 

[Reported  190  U.  S.  540.] 

Holmes,  J.  This  is  an  action  of  contract  brought  by  the  plaintiff 
in  error,  a  Kentucky  corporation,  against  the  defendant  in  error,  a 
Texas  corporation,  for  breach  of  a  contract  to  sell  and  deliver  crude  oil. 
The  defendant  excepted  to  certain  allegations  of  damage,  and  pleaded 
that  the  damages  had  been  claimed  and  magnified  fraudulently  for 
the  purpose  of  giving  the  L^nited  States  Circuit  Court  jurisdiction, 
when  in  truth  they  were  less  than  two  thousand  dollars.  The  judge 
sustained  the  exceptions.  He  also  tried  the  question  of  jurisdiction 
before  hearing  the  merits,  refused  the  plaintiff  a  jury,  found  that  the 
plea  was  sustained  and  dismissed  the  cause.  The  plaintiff  excepted 
to  all  the  rulings  and  action  of  the  court,  and  l)rings  the  case  here  b}^ 
writ  of  error.  If  the  rulings  and  findings  were  right  there  is  no  ques- 
tion that  the  judge  was  right  in  dismissing  the  suit,  North  American 
Transportation  &  Trading  Co.  x.  Morrison,  178  U.  S.  262,  267,  but 
the  grounds  upon  which  he  went  are  re-examinable  here.  Wetmore  v. 
Rymer,  169  U.  S.  115. 

The  contract  was  made  through  a  broker,  it  would  seem  by  writing, 
and  at  all  events  was  admitted  to  be  correctly  stated  in  the  following 
letter : 


778  GLOBE    REFINING    CO.    V.    LANDA   COTTON   CO.      [CIL\P.    VI. 

"  Dallas,  Texas,  7/30/97. 
"  Landa  Oil  Company,  New  Braunfels,  Texas. 

"Gentlemen:  Referring  to  the  exchange  of  our  telegrams  to-day, 
we  have  sold  for  your  account  to  the  Globe  Refining  Company,  Louis- 
ville, Kentucky,  ten  (10)  tanks  prime  crude  C/S  oil  at  the  price  of 
15^  cents  per  gallon  of  73^2  pounds  f.  o.  b.  buyers'  tank  at  your  mill. 
Weights  and  quality  guaranteed. 

"Terms:  Sight  draft  without  exchange  b/ldg.  attached.  Sellers 
paying  commission. 

"  Shipment :  Part  last  half  August  and  balance  first  half  September. 
Shipping  instructions  to  be  furnished  by  the  Globe  Refining  Company. 

"Yours  truly, 

"  Thomas  &  Green,  as  Broker." 

Having  this  contract  before  us,  we  proceed  to  consider  the  allegations 
of  special  damage  over  and  above  the  difference  between  the  contract 
price  of  the  oil  and  the  price  at  the  time  of  the  breach,  which  was  the 
measure  adopted  by  the  judge.  These  allegations  must  be  read  with 
care,  for  it  is  obvious  that  the  pleader  has  gone  as  far  ag  he  dared  to  go 
and  to  the  verge  of  anything  that  could  be  justified  under  the  contract, 
if  not  beyond. 

It  is  alleged  that  it  was  agreed  and  understood  that  the  plaintiff 
would  send  its  tank  cars  to  the  defendant's  mills,  and  that  the  defend- 
ant promptly  would  fill  them  with  oil,  (so  far  simply  following  the 
contract,)  and  that  the  plantiff  sent  tanks.  "In  order  to  do  this  the 
plaintiff  was  under  the  necessity  of  obligating  itself  unconditionally  to 
the  railroad  company  (and  of  which  the  defendant  had  notice)  to  pay 
to  it  for  the  transportation  of  the  cars  from  said  Louisville  to  said  New 
Braunfels  in  the  sum  of  nine  hundred  dollars,"  which  sum  plaintiff  had 
to  pay,  "and  was  incurred  as  an  advancement  on  said  oil  contract." 
This  is  the  first  item.  The  last  words  quoted  mean  only  that  the  sum 
paid  would  have  been  allowed  by  the  railroad  as  part  payment  of  the 
return  charges  had  the  tanks  been  filled  and  sent  back  over  the  same 
road. 

Next  it  is  alleged  that  the  defendant,  contemplating  a  breach  of  the 
contract,  caused  the  plaintiff  to  send  its  cars  a  thousand  miles,  at  a 
cost  of  a  thousand  dollars ;  that  defendant  cancelled  its  contract  on  the 
second  of  September,  but  did  not  notify  the  plaintiff  until  the  fourteenth, 
when,  if  the  plaintiff  had  known  of  the  cancellation,  it  would  have  been 
supplying  itself  from  other  sources;  that  plaintiff  (no  doubt  defendant 
is  meant)  did  so  wilfully  and  maliciously,  causing  an  unnecessary  loss 
of  two  thousand  dollars. 

Next  it  is  alleged  that  by  reason  of  the  breach  of  contract  and  want 
of  notice  plaintiff  lost  the  use  of  its  tanks  for  thirty  days  —  a  loss 
estimated  at  seven  hundred  dollars  more.  Next  it  is  alleged  that  the 
plaintiff  had  arranged  with  its  o\\ti  customers  to  furnish  the  oil  in 


SECT.    IV.]         GLOBE    REFINING   CO.    V.    LANDA    COTTON   CO.  779 

question  within  a  certain  time,  which  contemplated  sharp  compliance 
with  the  contract  by  the  defendant,  "all  of  which  facts,  as  abo^•e 
stated,  were  well  known  to  the  defendant,  and  defendant  had  con- 
tracted to  that  end  with  the  plaintiff."  This  item  is  put  at  seven 
hundred  and  forty  dollars,  with  a  thousand  dollars  more  for  loss  of 
customers,  credit  and  reputation.  Finally,  at  the  end  of  the  petition 
it  is  alleged  generally  that  it  was  knowTi  to  defendant  and  in  contem- 
plation of  the  contract  that  plaintiff  would  have  to  send  tanks  at 
great  expense  from  distant  points,  and  that  plaintiff  "  was  required  to 
pay  additional  freight  in  order  to  rearrange  the  destination  of  the 
various  tanks  and  other  points."  Then  it  is  alleged  that,  by  reason 
of  the  defendant's  breach,  the  plaintiff  had  to  pay  three  hundred  and 
fifty  dollars  additional  freight. 

Whatever  may  be  the  scope  of  the  allegations  which  we  have  quoted, 
it  will  be  seen  that  none  of  the  items  was  contemplated  expressly 
by  the  words  of  the  bargain.  Those  words  are  before  us  in  writing, 
and  go  further  than  to  contemplate  that  when  the  deliveries  were  to 
take  place  the  buyer's  tanks  should  be  at  the  defendant's  mill.  Under 
such  circumstances  the  question  is  suggested  how  far  the  express  terms 
of  a  writing,  admitted  to  be  complete,  can  be  enlarged  by  averment 
and  oral  evidence,  and  if  they  can  be  enlarged  in  that  way,  what  aver- 
ments are  sufficient.  When  a  man  commits  a  tort  he  incurs  by  force 
of  the  law  a  liability  to  damages,  measured  by  certain  rules.  When  a 
man  makes  a  contract  he  incurs  by  force  of  the  law  a  liability  to  dam- 
ages, unless  a  certain  promised  event  comes  to  pass.  But  unlike  the 
case  of  torts,  as  the  contract  is  by  mutual  consent,  the  parties  themselves, 
expressly  or  by  implication,  fix  the  rule  by  which  the  damages  are  to  be 
measured.  The  old  law  seems  to  have  regarded  it  as  technically  in  the 
election  of  the  promisor  to  perform  or  to  pay  damages.  Bromage  v. 
Genning,  1  Roll.  R.  368;  Hulbert  v.  Hart,  1  Vern.  133.  It  is  true  that  as 
people  when  contracting  contemplate  performance,  not  breach,  they 
commonly  say  little  or  nothing  as  to  what  shall  happen  in  the  latter 
event,  and  the  common  rules  have  been  worked  out  by  common  sense, 
which  has  established  what  the  parties  probably  would  have  said  if  they 
had  spoken  about  the  matter.  But  a  man  never  can  be  absolutely 
certain  of  performing  any  contract  when  the  time  of  performance 
arrives,  and  in  many  cases  he  obviously  is  taking  the  risk  of  an  event 
which  is  wholly  or  to  an  appreciable  extent  beyond  his  control.  The 
extent  of  liability  in  such  cases  is  likely  to  be  within  his  contemplation, 
and  whether  it  is  or  not,  should  be  worked  out  on  terms  which  it  fairly 
may  be  presumed  he  would  have  assented  to  if  they  had  been  presented 
to  his  mind.  For  instance,  in  the  present  case  the  defendant's  mill  and 
all  its  oil  might  have  burned  before  the  time  came  for  delivery.  Such  a 
misfortune  would  not  have  been  an  excuse,  although  probably  it  would 
have  prevented  performance  of  the  contract.  If  a  contract  is  broken 
the  measure  of  damages  generally  is  the  same,  whatever  the  cause  of 


780 


GLOBE   REFINING   CO.    V.    LANDA   COTTON   CO.      [CHAP.   VI. 


the  breach.  We  have  to  consider  therefore  Mhat  the  plaintiff  would 
have  been  entitled  to  recover  in  that  case,  and  that  depends  on  what 
liability  the  defendant  fairly  may  be  supposed  to  have  assumed  con- 
sciously, or  to  have  warranted  the  plaintiff  reasonably  to  suppose  that 
it  assumed,  when  the  contract  was  made. 

This  point  of  view  is  taken  by  implication  in  the  rule  that  "a  person 
can  only  be  held  to  be  responsible  for  such  consequences  as  may  be 
reasonably  supposed  to  be  in  the  contemplation  of  the  parties  at  the 
time  of  making  the  contract."  Grebert-Borgnis  v.  Nugent,  15  Q.  B.  D. 
85,  92;  Home  v.  Midland  Ry.  Co.,  L.  R.  7  C.  P.  583,  591;  Hadley  v. 
Baxendale,  9  Exch.  341,  354;  Western  Union  Telegraph  Co.  v.  Hall,  124 
U.  S.  444,  456;  Howard  v.  Stillwell  &  Bierce  Manufacturing  Co.,  139 
U.  S.  199,  206;  Primrose  r.  Western  Union  Telegraph  C^o.,  154  U.  S. 
1,  32.  The  suggestion  thrown  out  by  Bramwell,  B.,  in  Gee  r.  Lancashire 
&  Yorkshire  Ry.  Co.,  6  H.  &  N.  211,  218,  that  perhaps  notice  after  the 
contract  was  made  and  before  breach  would  be  enough,  is  not  accepted 
by  the  later  decisions.  See  further  Hydraulic  Engineering  Co.  v. 
McHaffie,  4  Q.  B.  D.  670,  674,  676.  The  consequences  must  be  con- 
templated at  the  time  of  the  making  of  the  contract. 

The  question  arises  then,  what  is  sufficient  to  show  that  the  conse- 
quences were  in  contemplation  of  the  parties  in  the  sense  of  the  vendor 
taking  the  risk?  It  has  been  held  that  it  may  be  proved  by  oral  evi- 
dence when  the  contract  is  in  writing.  Messmore  v.  New  York  Shot  & 
Lead  Co.,  40  N.  Y.  422.  See  Sawdon  r.  Andrew,  30  Law  Times, 
N.  S.  23.  But,  in  the  language  quoted,  with  seeming  approbation, 
by  Blackburn,  J.,  from  Mayne  on  Damages,  2d  ed.  10,  in  Elbinger 
Actien-Gesellschaft  v.  Armstrong,  L.  R.  9  Q.  B.  473,  478,  "it  may  be 
asked,  with  great  deference,  whether  the  mere  fact  of  such  consequences 
being  communicated  to  the  other  party  will  be  sufficient,  without 
going  on  to  show  that  he  was  told  that  he  would  be  answerable  for 
them,  and  consented  to  undertake  such  a  liabilit}'?"  Mr.  Justice 
Willes  answered  this  question,  so  far  as  it  was  in  his  power,  in  British 
Columbia  Saw-Mill  Co.  v.  Nettleship,  L.  R.  3  C.  P.  499,  508:  "I  am 
disposed  to  take  the  narrow  view,  that  one  of  two  contracting  parties 
ought  not  to  be  allowed  to  obtain  an  advantage  which  he  has  not  paid 
for.  ...  If  [a  lialjility  for  the  full  profits  that  might  be  made  by  ma- 
chinery which  the  defendant  was  transporting,  if  the  plaintiff's  trade 
should  prove  successful  and  without  a  rival]  had  been  presented  to  the 
mind  of  the  ship  OA\Tier  at  the  time  of  making  the  contract,  as  the  basis 
upon  which  he  was  contracting,  he  would  at  once  have  rejected  it. 
-Vnd,  though  he  knew  from  the  shippers  the  use  they  intended  to  make 
of  the  articles,  it  could  not  be  contended  that  the  mere  fact  of  knowledge, 
without  more,  would  be  a  reason  for  imposing  upon  him  a  greater  degree 
of  liability  than  would  otherwise  htive  been  cast  upon  him.  To  my 
mind,  that  leads  to  the  inevitable  conclusion  that  the  mere  fact  of 
knowledge  cannot  increase   the   liability.     The  knowledge  must   be 


SECT.    IV.]        GLOBE    REFINING   CO.    V.    LANDA    COTTON   CO.  781 

brought  home  to  the  party  sought  to  be  charged,  under  such  circum- 
stances that  he  must  know  that  the  person  he  contracts  with  reasonably 
beheves  that  he  accepts  the  contract  with  the  special  condition  at- 
tached to  it."  The  last  words  are  quoted  and  reaffirmed  by  the  same 
judge  in  Home  v.  Midland  Ry.  Co.,  L.  R.  7  C.  P.  583,  591;  s.  c,  L.  R. 
8  C.  P.  131.    See  also  Benjamin,  Sale,  6th  Am.  ed.  §  872. 

It  may  be  said  with  safety  that  mere  notice  to  a  seller  of  some  interest 
or  probable  action  of  tJie  buyer  is  not  enough  necessarily  and  as  matter 
of  law  to  charge  the  seller  with  special  damage  on  that  account  if  he 
fails  to  deliver  the  goods.  With  that  established  we  recur  to  the  allega- 
tions. With  regard  to  the  fii-st  it  is  obvious  that  the  plaintiff  was  free 
to  bring  its  tanks  from  where  it  liked  —  a  thousand  miles  away  or  an 
adjoining  yard  —  so  far  as  the  contract  was  concerned.  The  allegation 
hardly  amounts  to  saying  that  the  defendant  had  notice  that  the 
plaintiff  was  likely  to  send  its  cars  from  a  distance.  It  is  not  alleged 
that  the  defendant  had  notice  that  the  plaintiff  had  to  bind  itself  to  pay 
nine  hundred  dollars,  at  the  time  when  the  contract  was  made,  and  it 
nowhere  is  alleged  that  the  defendant  assumed  any  liability  in  respect 
of  this  uncertain  element  of  charge.  The  same  observations  may  be 
made  with  regard  to  the  claim  for  loss  of  use  of  the  tanks  and  to  the 
final  allegations  as  to  sending  the  tanks  from  distant  points.  It  is  true 
that  this  last  was  alleged  to  have  been  in  contemplation  of  the  contract, 
if  we  give  the  plaintiff  the  benefit  of  the  doubt  in  construing  a  some- 
what confused  sentence.  But  having  the  contract  before  us  we  can  see 
that  this  ambiguous  expression  cannot  be  taken  to  mean  more  than 
notice,  and  notice  of  a  fact  which  would  depend  upon  the  accidents  of 
the  future. 

It  is  to  be  said  further  wdth  regard  to  the  foregoing  items  that  they 
were  the  expenses  which  the  plaintiff  was  willing  to  incur  for  perform- 
ance. If  it  had  received  the  oil  these  were  deductions  from  any  profit 
which  the  plaintiff  would  have  made.  But  if  it  gets  the  dift'erence  be- 
tween the  contract  price  and  the  market  price  it  gets  what  represents 
the  value  of  the  oil  in  its  hands,  and  to  allow  these  items  in  addition 
would  be  making  the  defendant  pay  twice  for  the  same  thing. 

It  must  not  be  forgotten  that  we  are  dealing  with  pleadings,  not 
evidence,  and  with  pleadings  which,  as  we  have  said,  evidentl\-  put  the 
plaintiff's  case  as  high  as  it  possibly  can  be  put.  There  are  no  inferences 
to  be  dra"s\'n,  and  therefore  cases  like  Hammond  r.  Bussey,  20  Q.  B.  D. 
79,  do  not  apply.  It  is  a  simple  question  of  allegations  which,  by  de- 
clining to  amend,  the  plaintift'  has  admitted  that  it  cannot  reinforce. 
This  consideration  applies  with  special  force  to  the  attempt  to  hold  the 
defendant  liable  for  the  breach  of  the  plaintift"'s  contract  with  third 
persons.  The  allegation  is  that  the  fact  that  the  plaintiff  had  contracts 
over  was  well  known  to  the  defendant,  and  that  "defendant  had  con- 
tracted to  that  end  with  the  plaintiff."  Whether,  if  we  were  sitting  as 
a  jury,  this  would  warrant  an  inference  that  the  defendant  assun  ed  an 


782     C.  B.  NASH   CO.  V.  WESTERN   UNION  TELEGRAPH   CO.    [CHAP.  VI. 

additional  liability  we  need  not  consider.  It  is  enough  to  say  that  it 
does  not  allege  the  conclusion  of  fact  so  definitely  that  it  must  be  as- 
sumed to  be  true.  With  the  contract  before  us  it  is  in  a  high 
degree  improbable  that  any  such  conclusion  could  have  been  made 
good. 

The  only  other  allegation  needing  to  be  dealt  with  is  that  the  defend- 
ant maliciously  caused  the  plaintiff  to  send  the  tanks  a  thousand  miles, 
contemplating  a  breach  of  its  contract.  So  far  as  this  item  has  not  been 
answered  by  what  has  been  said,  it  is  necessary  only  to  add  a  few  words. 
The  fact  alleged  has  no  relation  to  the  time  of  the  contract.  Therefore 
it  cannot  affect  the  damages,  the  measure  of  which  was  fixed  at  that 
time.  The  motive  for  the  breach  commonly  is  immaterial  in  an  action 
on  the  contract.  Grand  Tower  Co.  v.  Phillips,  23  Wall.  471,  480; 
Wood's  Mayne  on  Damages,  §  45;  2  Sedgwick,  Damages,  8th  ed.  §  603. 
It  is  in  this  case.  Whether  under  any  circumstances  it  might  give  rise 
to  an  action  of  tort  is  not  material  here.  See  Emmons  v.  Alvord,  177 
Massachusetts,  466,  470. 

The  allowance  of  the  exceptions  made  the  trial  of  the  plea  superfluous. 
If  the  question  of  fact  was  to  be  tried  as  to  whether  the  amount  of 
damages  that  fairly  could  be  claimed  was  sufficient  to  give  the  court 
jurisdiction,  the  court  had  authority  to  try  it.  Wetmore  v.  Rymer, 
169  U.  S.  115,  121;  Act  of  March  3,  1875,  c.  135  §  5,  18  Stat.  472.  In 
coming  to  his  conclusion,  apart  from  what  was  apparent  on  the  face  of 
the  pleadings,  the  judge  no  doubt  was  influenced  largely  by  a  letter 
from  the  plaintiff  to  the  defendant,  enclosing  an  itemized  bill  for  one 
thousand  and  twenty-one  dollars  and  twenty-eight  cents.  This  letter 
suggested  no  further  claim  except  for  "  any  additional  mileage  we  may 
have  to  pay."  Of  course,  if  the  judge  accepted  the  plaintiff's  own  view 
of  its  case  as  expressed  here,  the  pretence  of  jurisdiction  was  at  an  end. 
Some  attempt  was  made  to  make  out  this  was  an  offer  of  compromise, 
and  inadmissible.  But  the  letter  did  not  purport  to  be  anything  of 
the  sort,  it  was  an  out  and  out  adverse  demand. 

I  Judgment  affirmed. 


C.  B.  NASH  CO.  V.  WESTERN  UNION  TELEGRAPH  CO. 
Supreme  Court  of  Nebraska,  1915. 

[Reported  152  N.  W.  Rep.  387.] 

Barnes,  J.  Appeal  from  a  judgment  of  the  district  court  of  Douglas 
county,  in  an  action  for  damages  for  a  failure  to  transmit  and  deliver 
a  telegram.  The  facts  alleged  in  plaintiff's  petition  may  be  briefly 
stated  as  follows:  At  10:10  o'clock  a.m.,  on  Thursday,  January  30, 
1908,  the  plaintiff,  the  C.  B.  Nash  Company,  delivered  to  the  Western 


SECT.  IV.]      C.  B.  NASH   CO.  V.  WESTERN   UNION   TELEGRAPH   CO.     783 

Union  Telegraph  Company,  at  its  main  office  in  the  city  of  Omaha,  the 
following  telegram: 

"  Shearson,  Hammill  &  Company,  71  Broadway,  New  York,  N.  Y. 
Outbreak  tapestry  preternatural.  Collect.  [Signed]  The  C.  B.  Nash 
Company." 

Across  the  face  of  the  telegram  was  written  in  red  ink,  "Rush." 
The  message  when  translated  reads: 

"Sell  300  American  Smelting  &  Refining  Company  conmion  stock 
at  683/^." 

At  the  time  when  the  message  was  delivered  to  the  telegraph  com- 
pany, the  plaintiff  had  on  deposit  with  Shearson,  Hammill  &  Co.,  300 
shares  of  the  stock  designated,  and  wished  its  brokers  to  sell  the  same 
as  directed  by  the  telegram.  Had  the  defendant  promptly  transmitted 
and  delivered  the  message,  Shearson,  Hammill  &  Co.  would  have 
sold  the  stock  at  a  price  equal  to  or  greater  than  that  named.  On 
February  1,  1908,  plaintiff  telegraphed  Shearson,  Hammill  &  Co.  to 
ascertain  if  the  sale  had  been  made,  and  was  informed  that  the  order 
to  sell  had  not  been  received.  On  the  3d  of  February,  1908,  plaintiff  sent 
them  a  duplicate  of  the  original  message,  which  was  received  by  them 
on  the  5th  day  of  February,  1908.  Meanwhile  the  price  of  said  stock 
had  declined  to  $62.50  per  share,  at  which  price  the  stock  was  sold, 
and  plaintiff  was  damaged,  by  the  failure  of  the  telegraph  company 
to  promptly  transmit  and  deliver  the  message,  in  the  sum  of  SI, 986, 
for  which,  with  interest,  the  plaintiff  prayed  judgment.  The  defend- 
ant's answer  was  a  general  denial.  On  the  trial  the  court  limited  the 
measure  of  damages  to  the  difference  between  the  price  at  which  the 
stock  would  have  sold  on  January  30,  1908,  had  the  telegram  been 
duly  transmitted  and  delivered,  and  the  price  at  which  the  plaintiff 
could  have  sold  the  stock  on  February  3,  1908.  The  jury  returned  a 
verdict  for  the  plaintiff  for  $600,  with  interest  amounting  to  $199,  or  a 
total  of  $799.  Judgment  was  rendered  on  the  verdict,  and  the  defend- 
ant has  appealed.  ... 

Defendant's  first  contention  is  that  damages  for  loss  of  an  expected 
sale  or  purchase,  caused  by  a  failure  to  deliver  a  purely  cipher  telegram, 
cannot  be  recovered;  and  second,  that,  if  any  recovery  could  be  had, 
the  damages  would  be  only  nominal.  Appellant  supports  these  con- 
tentions by  a  long  list  of  authorities,  commencing  with  Hadley  v. 
Baxendale,  9  Exch.  (Eng.)  *341,  26  Eng.  Law  &  Eq.  398;  and  it  may  be 
conceded  that,  if  the  facts  justified  the  application  of  the  rules  invoked 
by  the  defendant,  these  contentions  should  be  sustained.  From  an 
examination  of  the  record,  we  are  constrained  to  hold  that  the  rule 
contended  for  by  the  defendant  should  not  be  applied  in  this  case. 
Section  7406,  Rev.  St.  1913,  provides,  among  other  things,  that  a 
telegraph  company  shall  be  liable  for  the  nondelivery  of  and  for  all 


784     C.  B.  NASH    CO.  V.  WESTERN   UNION   TELEGRAPH    CO.     [cHAP.  VI. 

mistakes  in  transmitting  messages  by  any  person  in  its  employ.  This 
statute  was  construed  in  Kemp  r.  Western  Union  Telegraph  Co., 
28  Neb.  661,  44  N.  W.  1064,  26  Am.  St.  Rep,  363,  Western  Union 
Telegraph  Co.  v.  Kemp,  44  Neb.  194,  62  N.  W.  451,  48  Am.  St.  Rep. 
723,  and  again  in  American  Express  Co.  r.  Postal  Telegraph-Cable  Co., 

97  Neb. ,  151  N.  W.  240.    In  our  opinion  the  e\adence  in  this  case 

is  sufficient  to  bring  it  within  the  rule  announced  in  Smith  v.  Western 
Union  Telegraph  Co.,  80  Neb.  395,  114  N.  W.  228,  Western  Union 
Telegraph  Co.  v.  Church,  3  Neb.  (Vnoi.)  22,  90  N.  W.  878,  57  L.  R.  A. 
905,  Baldwin  v.  United  States  Telegraph  Co.,  45  N.  Y.  744,  6  Am.  Rep. 
165,  and  Brooks  &  Son  v.  Western  Union  Telegraph  Co.,  26  Utah,  147, 
153,  72  Pac.  499,  500.    In  the  case  last  cited  it  was  said : 

"But  the  authorities  hold,  almost  uniformly,  that  it  is  sufficient  to 
create  a  liability  on  the  part  of  a  company  for  all  damages  directly 
and  proximately  resulting  from  the  negligent  acts  of  its  agents  in  failing 
to  transmit  a  message  in  the  form  in  which  it  is  delivered,  or  in  omitting 
to  send  it  at  all,  provided  the  message  discloses  enough  of  its  nature 
and  importance  to  put  an  ordinary  and  prudent  person  upon  inquiry. 
.  .  .  The  first  message  herein  showed  on  its  face  that  it  referred  to  a 
commercial  transaction.  This  fact,  together  with  the  fact  that  re- 
spondent B.  B.  Brooks  endeavored  to  send  a  second  message  relating 
to  the  same  matter,  with  the  word  'Rush'  written  conspicuously 
thereon,  was  notice  to  the  appellant' that  these  messages  were  impor- 
tant; and,  if  appellant  had  desired  any  further  information  on  this 
point,  it  no  doubt  could  have  obtained  it  by  inquiring  of  Brooks  when 
he  delivered  the  message  to  appellant  for  transmission  over  its  wires." 

The  message  in  question  in  this  case  on  its  face,  though  in  cipher, 
would  furnish  a  person  of  ordinary  prudence  notice  that  it  was  impor- 
tant ;  and  this  fact,  taken  together  with  the  course  of  business  that  had 
obtained  between  the  plaintiff  and  the  defendant  company  for  many 
years,  was  sufficient  notice  to  the  defendant  that  substantial  loss  might 
follow  its  failure  to  promptly  transmit  and  deliver  the  message  to 
Shearson,  Hammill  &  Co. 

We  are  therefore  of  opinion  that  the  district  court  did  not  err  in  re- 
fusing to  sustain  the  defendant's  motions  and  in  submitting  the  case 
to  the  jury.  A  verdict  having  been  rendered  in  favor  of  the  plaintiff 
upon  this  evidence  and  the  instructions  of  the  court,  we  feel  con- 
strained to  sustain  the  verdict.  We  are  aware  that  the  question  is  a 
close  one;  but,  on  an  examination  of  the  whole  record,  we  are  of  opinion 
that  the  defendant  had  a  fair  trial,  that  it  was  chargeable  with  notice 
of  the  importance  of  the  plaintiff's  message,  and  that  substantial  loss 
would  follow  a  failure  to  promptly  transmit  and  deliver  it. 

The  record  being  without  reversible  error,  the  judgment  of  the 
district  court  is  affirmed. 


SECT.    IV.]  LOKER    V.    DAAION.  785 


LOKER  V.   DAMON. 
Supreme  Judicial  Court  of  Massachusetts,  1835. 

[Reported  17  Pick.  284.] 

Trespass  quare  clausuvi.  The  declaration  set  forth,  that  the  defend- 
ants destroyed  and  carried  away  ten  rods  of  the  plaintiff's  fences,  in 
consequence  of  which  certain  cattle  escaped  through  the  breach  and 
destroyed  the  plaintiff's  grass,  and  that  he  thereby  lost  the  profits 
of  his  close  from  September,  18.32  to  July,  1833. 

The  defendants  pleaded,  severally,  first,  the  general  issue;  and 
secondly  a  right  of  way,  setting  forth,  that  at  the  times  when  the  tres- 
passes were  alleged  to  have  been  committed,  and  at  the  places  where, 
&c.,  there  was  a  town  way,  over  which  all  persons  had  a  right  to  pass, 
which  way  was  obstructed  by  the  fences,  and  that  in  order  to  pass  these 
it  was  necessary  to  remove  them ;  which  they  accordingly  did.  On  these 
pleas  issues  were  joined. 

At  the  trial  before  Morton,  J.,  the  plaintiff  proved,  that  the  defend- 
ants, in  the  latter  part  of  November,  removed  portions  of  the  stone 
wall  inclosing  the  locus,  and  thus  made  a  passage-way  through  it; 
that  these  breaches  were  not  repaired  till  after  the  middle  of  the  suc- 
ceeding May,  when  they  were  closed  up  by  the  plaintiff;  and  that  in  the 
meantime,  the  cattle  of  the  plaintiff  and  others  passed  into  the  close, 
and  fed  upon  the  grass;  that  the  close  contained  four  or  five  acres; 
and  that  in  1832,  it  produced  about  a  ton  of  hay  to  the  acre.  The  close 
was  a  part  of  the  farm  on  which  the  plaintiff  li^•ed. 

The  Court  ruled,  that  the  plaintiff'  was  entitled  to  recover  in  damages, 
only  enough  to  remunerate  him  for  replacing  the  fence. ^ 

Shaw,  C.  J.  .  .  .  The  Court  are  of  opinion,  that  the  direction  re- 
specting damages  was  right.  In  assessing  damages,  the  direct  and  im- 
mediate consequences  of  the  injurious  act  are  to  be  regarded,  and 
not  remote,  speculative  and  contingent  consequences,  which  the  party 
injured  might  easily  have  avoided  by  his  own  act.  Suppose  a  man  should 
enter  his  neighbour's  field  unlawfully,  and  leave  the  gate  open;  if,  be- 
fore the  owner  knows  it,  cattle  enter  and  destroy  the  crop,  the  trespasser 
is  responsible.  But  if  the  owner  sees  the  gate  open  and  passes  it  fre- 
quently, and  wilfully  and  ol)stinately  or  through  gross  negligence  lea^•es 
it  open  all  summer,  and  cattle  get  in,  it  is  his  own  folly.  So  if  one  throw 
a  stone  and  break  a  wnndow,  the  cost  of  repairing  the  window  is  the 
ordinary  measure  of  damage.  But  if  the  owmer  suffers  the  window  to 
remain  without  repairing  a  great  length  of  time  after  notice  of  the  fact, 
and  his  furniture,  or  pictures,  or  other  valuable  articles,  sustain  damage, 
or  the  rain  beats  in  and  rots  the  window,  this  damage  would  be  too  re- 
1  Part  of  the  case,  not  involving  a  question  of  damages,  is  omitted.  —  Ed. 


786 


WOLF   v.    STUDEBAKEK. 


[chap.    VI, 


mote.  We  think  the  jury  were  rightly  instructed,  that  as  the  trespass 
consisted  in  removing  a  few  rods  of  fence,  the  proper  measure  of  damage 
was  the  costs  of  repairing  it,  and  not  the  loss  of  a  subsequent  year's  crop 
arising  from  the  want  of  such  fence.  I  do  not  mean  to  say,  that  other 
damages  may  not  be  given  for  injury  in  breaking  the  plaintiff's  close, 
but  I  mean  only  to  say,  that  in  the  actual  circumstances  of  this  case, 
the  cost  of  replacing  the  fence,  and  not  the  loss  of  an  ensuing  year's 
crop,  is  to  be  taken  as  the  rule  of  damages,  for  that  part  of  the  injury 
which  consisted  in  removing  the  fence  and  leaving  the  close  exposed. 
Judgment  on  the  default,  for  the  sum  of  SI. 50  damages. 


WOLF   t.   STUDEBAKER. 
SuPREAiE  Court  of  Pexxstlvaxlv,  1870. 

[Reported  65  Pa.  460.] 

Thompson,  C.  J.  We  have  no  question  before  us  invohdng  the 
fact  of  an  agreement  between  the  plaintiff  and  defendant,  by  which 
the  latter  agreed  to  let  to  the  former,  on  the  shares,  her  farm  for  one 
year,  from  the  1st  of  April,  1SG7.  The  verdict  has  settled  that  fact  in 
favor  of  the  plaintiff.  The  only  question  before  us,  therefore,  is  that 
relating  to  damages  for  the  breach  of  the  contract  to  give  possession 
by  the  defendant. 

The  plaintiff  claimed  to  recover  the  value  of  his  contract,  that 
is  to  say,  what  he  might  reasonably  have  made  out  of  it,  for  his  dam- 
ages. In  Hoy  V.  Gronoble,  10  Casey  10,  which,  like  the  case  in  hand, 
was  to  recover  damages  for  a  failure,  on  part  of  the  defendant,  to 
deliver  possession  of  the  farm  which  he  had  agreed  to  let  to  the  plaintiff 
to  farm  on  the  shares,  the  rule  as  to  damages  is  thus  stated  in  the  opinion 
of  the  court  by  Strong,  J. :  "  We  cannot  say,  therefore,  that  the  jury 
were  misled  in  this  case  by  being  told  that  the  damages  of  the  plaintiff 
should  be  measured  by  what  he  could  have  made  on  the  farm.  This 
was  but  another  mode  of  saying  that  he  was  entitled  to  the  value 
of  his  bargain."  This,  as  a  rule,  does  not  seem  to  have  been  controverted 
by  the  defendant.  But  she  was  permitted  to  prove,  under  objection,  in 
mitigation  of  damages,  by  one  Abraham  May,  as  follows: 

"Wolf  was  engaged  in  hauling  for  the  bridge  in  the  simimer  of  1867; 
he  commenced  hauling  in  June,  and  continued  up  to  the  cold  weather; 
before  this  he  was  working  lots  around;  after  this  he  marketed  some. 
Wolf  and  I  looked  over  his  books  at  one  time,  and  his  earnings 
amounted  to  about  SIOOO;  he  hauled  after  this;  he  hauled  hay  to  his 
o\\'n  stable,  and  some  to  BoA\Tnan's  in  the  latter  part  of  March;  his 
property  consists  of  a  house  and  stable,  and  about  a  quarter  of  an  acre 
of  land;  I  was  at  Wolf's  sale,"  &c. 


SECT.    IV.]  WOLF   V.    STUDEBAKER.  787 

The  earnings  of  this  man  in  this  way,  it  was  thought  by  the  learned 
judge,  should  to  the  extent  of  them  mitigate  the  damages  arising  from 
the  defendant's  broker  contract;  in  other  words,  the  logic  seemed  to  be 
that  because  he  was  an  industrious  man,  he  was  not  within  the  same 
rule  of  compensation  that  one  not  so  would  be.  There  are  undoubtedly 
cases  in  which  such  facts  do  mitigate  damages.  Such  commonly  occur 
in  cases  of  the  emplo^Tnent  of  clerks,  agents,  laborers  or  domestic 
servants,  for  a  year  or  a  shorter  determinate  period.  But  I  have  found 
no  case  where  a  disappointed  party  to  a  contract  for  a  specific  thing  or 
work,  who,  taking  the  risk  from  necessity,  of  a  different  business  from 
that  which  his  contract  if  complied  with  would  have  furnished,  and 
shifting  for  himself  and  family  for  employment  for  them  and  his  teams, 
is  to  be  regarded  as  doing  it  for  the  benefit  of  a  faithless  contractor.  It 
seems  to  me,  therefore,  that  the  rule  upon  which  the  testimony  quoted 
was  admitted  was  wrested  from  its  legitimate  purpose,  and  applied 
to  an  illegitimate  one.  In  2  Greenl.  Ev.,  §  261  a,  the  distinction  is 
marked  between  "  contracts  for  specific  work  and  contracts  for  the  hire 
of  clerks,  agents,  laborers  and  domestic  servants  for  a  year  or  shorter 
determinate  periods."  In  that  case  the  learned  author  shows  that 
the  defendant  may  prove,  on  a  breach  of  the  contract,  "either  that 
the  plaintiff  was  actually  engaged  in  other  profitable  ser\'ice  dur- 
ing the  term,  or  that  such  employment  was  offered  to  him,  and  he 
rejected  it." 

■There  is  an  evident  distinction  between  such  a  hiring  and  a  con- 
tract for  the  performance  of  some  specific  undertaking.  In  the  one 
case,  the  party  can  earn  and  expect  to  earn  no  more  than  single  wages, 
and  if  he  gets  that,  his  loss  will  generally  be  but  nominal.  King  v. 
Steiren,  8  Wright  99,  was  of  this  nature.  Whereas,  in  the  other  case 
the  loss  of  the  party  is  the  loss  of  the  benefits  of  the  contract  he  is  pre- 
pared to  perform.  In  Costigan  v.  The  Railroad  Company,  2  Denio  609, 
in  a  case  of  hiring  for  personal  service,  where  the  party  was  dismissed 
before  his  term  had  expired,  it  was  held  he  was  not  obliged  to  seek 
employment,  nor  perform  services  offered  him  of  a  different  nature  from 
that  he  had  engaged  to  perform,  in  order  to  reco\'er  full  damages  for 
disappointment.  In  analogy  to  this  principle,  I  would  say,  that 
where  a  disappointed  contractor  for  the  performance  of  a  specified 
thing  finds  something  of  a  different  nature  from  his  contract  to  do, 
his  doing  it  ought  not  to  mitigate  the  damages  for  the  breach  of  his 
contract  by  the  other  party.  Indeed  there  is  enough  in  the  difficulty  of 
applying  such  a  rule  to  discard  it.  It  would  necessarily  involve  proof 
of  everything,  great  and  small,  no  matter  how  various  the  items,  done  by 
the  plaintiff  during  the  period  of  the  contract,  might  be,  and  how  much 
he  made  in  the  meantime.  It  happened  in  this  case,  that  a  \\'itness 
saw  the  plaintiff's  book,  and  testifies  from  it  that  he  had  earned  SI 000. 
The  expense  incurred  in  earning  it,  he  did  not  see,  or  if  he  did,  did  not 
disclose.    But  this  single  case  ought  not  to  furnish  a  rule  in  other  cases. 


788     PLITVIMER   V.    PENOBSCOT    LUMBERING    ASSOCIATION.     [CHAP.  VI. 

It  cannot  be,  that  results  utterly  unconnected  with  the  cause  of  action, 
and  the  party  sued  can  be  made  to  tell  to  his  advantage. 

It  is  laid  down  in  every  case  of  damages  for  a  breach  of  contract, 
that  the  loss  or  injury  for  which  damages  are  allowable,  must  be  the 
proximate  consequence  of  the  injury.  A  remote  or  possible  injury  is 
not  a  sufficient  ground  for  compensation.  For  a  principle  so  familiar, 
we  need  only  cite  Adams  Express  Company  v.  Egbert,  12  Casey  360. 
Is  it  not,  therefore,  equally  just  and  logical,  that  whatever  shall  have 
the  effect  to  mitigate  damages  shall  have  some  proximate  relation  to 
the  contract? 

The  rule  of  damages  for  a  breach  of  contract  laid  down  by  Baron 
Alderson  in  Hadley  v.  Baxendale,  26  Eng.  L.  &  Eq.  398,  cited  in  the 
opinion  of  my  brother  Agnew,  in  Fleming  v.  Beck,  12  Wright  309, 
namely,  that  "where  two  parties  have  made  a  contract  which  one  of 
them  has  broken,  the  damages  which  the  other  party  ought  to  receive 
in  respect  to  such  breach  of  contract,  should  be  such  as  may  fairly 
and  reasonably  be  considered,  either  arising  naturally,  according  to 
the  usual  course  of  things,  from  such  breach  of  the  contract  itself,  or 
such  as  may  reasonably  be  supposed  to  have  been  in  the  contemplation 
of  both  parties  at  the  time  the;^  made  the  contract,  as  the  probable 
result  of  the  breach  of  it,"  we  regard  as  entirely  sound,  and  we  think 
that  that  which  should  mitigate  damages  in  a  contract  like  that  we  are 
considering,  should  be  something  resulting  from  the  acts  of  the  party 
occasioning  the  injury,  or  from  the  contract  itself.  The  damages  may 
be  said  to  be  fixed  by  the  law  of  the  contract  the  moment  it  is  broken, 
and  I  cannot  see  how  that  is  to  bd  altered  by  collateral  circumstances, 
independent  of,  and  totally  disconnected  from  it,  and  from  the  party 
occasioning  it. 

That  part  of  the  offer  to  show  the  plaintiff's  declarations  was  properly 
admitted.  ^Miat  a  party  declares  against  his  interest  in  a  litigated 
matter  is  always  evidence.  It  may  serve  to  show,  if  it  be  not  regarded 
as  a  mere  idle  declaration,  how  he  estimated  his  owti  cause  of  action, 
and  the  jury  may  give  them  such  weight  as  they  may  think  they  deserve, 
under  all  the  circumstances  of  the  case.    For  the  reasons  given, 

This  judgment  is  reversed,  and  a  venire  de  novo  is  awarded. 


PLUMMER  V.  PENOBSCOT  LUMBERING  ASSOCIATION 
Supreme  Judicial  Court  of  Maine,  1877. 

[Reported  67  Me.  363.] 

Case,  in  su})stance  that  the  plaintiff  was  possessed  of  about  700 
M.  feet  of  logs  in  the  Penobscot  river,  fastened  to  posts  and  trees; 
that  the  river  is  a  public  highway;  that  the  defendants  on  or  about 


SECT.    IV.]  KRAjVIER   V.    WOLF   CIGAR   STORES   CO.  789 

July  10,  1873,  carelessly  and  unlawfully  obstructed  the  channel  in 
violation  of  their  charter,  at  a  point  just  below  where  the  plaintiff's 
logs  were  fastened;  that  the  boom  remained  one  month,  during  which 
time  the  plaintiff  was  prevented  from  running  his  logs  down;  that 
during  the  time  the  market  value  depreciated;  that  this  detention 
was  to  prevent  the  West  Branch  logs  from  coming  dowTi  the  river  and 
perhaps  going  to  sea;  but  that  without  this  detention,  the  West  Branch 
logs  would  have  passed  safely  by  and  the  plaintiff'  been  uninjured;  that 
when  the  boom  was  open,  the  plaintiff's  rafts  were  torn  from  their 
fastening  and  scattered  and  carried  down  ri\er,  whereby  the  plaintiff 
was  put  to  great  expense  and  damage,  first  in  looking  after  his  logs, 
second  in  the  depreciation  of  the  value  while  the  boom  was  closed,  and 
third  for  logs  carried  away. 

The  defendants  relied  upon  their  charter  and  alleged  want  of  care 
on  the  part  of  the  plaintiff.  .  .  .^ 

DiCKERSON,  J.  .  .  .  The  plaintiff  was  not  bound  to  take  notice  of 
the  declared  purpose  of  the  company  to  swing  a  boom  across  the  river. 
Such  declaration  imposed  no  additional  duty  upon  him.  Non  constat 
that  the  WTongful  act  threatened  would  be  committed.  It  is  sufficient 
for  him  if  he  exercised  orflinary  care  in  the  preservation  of  his  logs  after 
he  had  knowledge  that  the  wrong  was  done.  The  defendants  were  not 
in  a  situation  to  require  of  the  plaintiff  a  greater  degree  of  care,  nor  was 
he  bound  to  render  it.  The  instructions  upon  this  branch  of  the  case, 
and,  also,  in  regard  to  the  measure  of  damages,  are  unobjectionable; 
and  we  do  not  perceive  sufficient  ground  for  sustaining  the  motion. 

Exceptions  and  motion  overruled.     Judgment  on  the  verdict. 


KRAMER  V.   WOLF  CIGAR  STORES  COMPANY. 
Supreme  Court  of  Texas,  1906. 

[Reported  99  Tex.  597.] 

Williams,  J.  The  action  was  by  Kramer  to  recover  damages  for 
breach  of  a  contract  by  which  the  defendant  had  employed  him  as  the 
general  manager  of  its  stores  in  Dallas.  .  .  . 

The  appellee  (the  present  plaintiff  in  error)  presented  cross-assign- 
ments in  the  Court  of  Civil  Appeals  upon  which  it  is  proper  that  we 
should  pass.  They  have  reference  to  the  rules  of  law  to  be  given  to  the 
jury  to  govern  in  determining  what,  if  any,  deductions  should  be  made 
from  the  contract  price  for  plaintiff's  services  in  case  he  should  be  found 
entitled  to  recover,  as  for  a  breach  of  the  contract.  The  evidence  in- 
dicates that  plaintiff  made  no  effort  to  secure  any  other  employment 
after  his  discharge  and  before  he  went  into  business  for  himself,  for 
1  Part  of  the  case,  not  involving  a  question  of  damages,  is  omitted.  —  Ed. 


790  KRAMER    V.    WOLF   CIGAR    STORES   CO.  [CHAP.    VI. 

the  reason,  as  he  states,  that  he  knew  that  the  attempt  to  secure  em- 
ployment of  the  same  character  as  that  which  he  had  of  defendant 
would  be  useless,  as  there  were  none  such  open  in  Dallas.  The  evidence 
also  tended  to  show  that  out  of  his  business  he  had  made  no  profit  during 
the  months  for  which  his  service  with  defendant  should  have  lasted. 
The  rules  of  law  applicable  to  this  state  of  facts  may  be  sufficiently 
stated  without  following  the  cross-assignments. 

The  plaintiff,  if  he  was  wrongfully  discharged,  was  bound  only  to 
use  reasonable  diligence  to  get  other  employment  and  to  reduce  his 
loss  as  far  as  could  thus  be  done.  Of  course,  if  no  other  employment 
could  have  been  obtained  by  reasonable  diligence,  proof  of  that  fact 
would  meet  every  requirement  of  the  law.  With  reference  to  the  char- 
acter of  employment  to  be  considered,  the  opinion  of  Judge  Henry  in 
Simon  v.  Allen,  76  Texas,  399,  furnishes  the  rule  applicable.  If  by 
reasonable  diligence  and  within  a  reasonable  time  he  could  have  se- 
cured another  position  of  substantially  the  same  character  and  grade  as 
that  which  he  had  held  with  defendant,  such  amount  as  he  could  have 
earned  therein  during  the  entire  term  of  service  should  be  deducted  from 
the  contract  price.  If  it  is  true,  as  he  claims,  that  he  could  not  thus 
have  secured  such  a  position,  and  he  knew  that  fact  from  the  time  of  his 
discharge,  then,  under  the  second  rule  laid  dowTi  in  the  case  referred  to, 
it  became  his  duty  to  use  reasonable  diligence  to  secure  other  employ- 
ment for  which  he  was  fitted,  and  in  that  case,  the  amount  he  should 
have  earned  in  this  way  during  the  term  of  service  should  be  the  de- 
duction. Should  it  be  found  that  no  employment  of  the  defined  char- 
acter could  have  been  had  by  the  diligence  required,  then,  and  then 
only,  the  question  will  arise  as  to  the  deduction  to  be  made  on  account 
of  plaintiff's  business. 

It  is  undoubtedly  true  that  if,  during  the  term  fixed  by  the  contract 
the  plaintiff  obtained  for  himself  benefits  of  pecuniary  character  by 
employing  in  his  own  business  the  services  which  would  have  been  due 
to  the  defendant  under  the  contract,  his  recovery  should  be  diminished 
to  the  extent  of  such  acquisition.  The  trial  court  fixed  the  measure 
of  this  as  "  the  reasonable  value  of  his  services  to  himself  in  the  business." 
His  counsel  contends  that  the  measure  should  be  the  profits  realized 
in  money  from  the  business.  We  are  of  the  opinion  that  the  charge  is 
correct,  but  that,  under  the  peculiar  facts  of  this  case,  it  needs  some 
explanation  to  avoid  misunderstanding.  The  value  of  his  services  to 
himself  is  not  to  be  understood  as  meaning  what  it  would  have  cost  to 
employ  him  or  one  like  him,  but  the  pecuniary  value  of  that  which  his 
services  yielded  him  in  the  business.  This  might  consist  of  something 
more  than  profits  actually  received  rn  money.  It  might  happen  that, 
while  no  such  profits  had  been  received  during  the  months  through 
which  the  service  with  defendant  should  have  extended,  yet  that  appre- 
ciable value  had  been  added  to  the  business  by  his  efforts ;  and  it  is  this 
consideration  from  which  we  conclude,  that  the  measure  suggested  by 


SECT.    IV.]  INGRAHAJVI   V.   PULLMAN   COMPANY.  791 

plaintiff's  counsel  might  be  inadequate  for  some  contingencies,  and  that 
of  the  court,  when  understood  as  explained,  more  correct.  Van  Winkle 
V.  Satterfield,  .58  Ark.  617;  Gates  v.  School  District,  57  Ark.  370; 
Jaffray  r.  King,  34  Md.  222;  Huntington  v.  Ogdensburgh  &  L.  C.  Ry. 
Co.,  33  How.  Pr.  416;  Toplitz  v.  Ullman,  2  N.  Y.  Supp.  863. 

What  we  have  said  is  deemed  sufficient  to  indicate  the  rules  to  guide 
at  another  trial. 

Reversed  and  remanded. 


INGRAHAM  v.  PULLMAN  COMPANY. 
Supreme  Judicial  Court  of  Massachusetts,  1906, 

[Reported  190  Mass.  33.] 

Morton,  J.  The  plaintiff  had  a  first-class  ticket  over  the  Pennsyl- 
vania Railroad  from  Jersey  City  to  Washington,  and  purchased  of  the 
defendant  a  ticket  for  a  drawing  room  in  a  car  forming  part  of  a  train 
which  was  to  leave  Jersey  City  on  the  night  of  January  22,  1902,  at 
9.40  p.  M.  arriving  at  Washington  at  3.4.5  A.  M.  The  car  was  described 
on  the  ticket  as  Car  No.  1,  and  the  ticket  permitted  the  drawing  room 
to  be  occupied  till  7  a.  m.  the  next  morning.  The  plaintiff  and  a  friend 
who  was  to  accompany  him  presented  themselves  at  the  train,  and 
were  told  by  the  conductor  that  there  was  no  drawing  room  in  Car  No.  1 
on  that  train.  A  section  was  offered  to  the  plaintiff  which  he  declined, 
and  entered  an  ordinary  passenger  car  not  belonging  to  the  defendant 
which  had  no  sleeping  accommodations,  and  travelled  therein  to 
Washington,  sitting  up  all  night.  There  was  e\adence  tending  to  show 
that  the  plaintiff  had  a  valvular  disease  of  the  heart  which  was  aggra- 
vated by  his  sitting  up  all  night,  and  that,  in  consequence  thereof,  he 
was  sick  after  his  arrival  at  W^ashington,  and  unable  to  work  regularly 
till  March  1.  It  appeared  that  the  next  train  for  Washington  left  at 
12.30  A.  M.,  arriving  there  at  7.19  a.  m.,  and  the  defendant  was  permitted 
subject  to  the  plaintiff's  objections  and  exceptions,  to  introduce  evi- 
dence tending  to  show  that  the  plaintiff  was  offered  a  drawing  room 
in  a  car  attached  to  that  train  which  would  be  ready  for  occupancy 
at  ten  o'clock,  and  which  was  in  all  respects  equal  to  the  drawing  room 
called  for  by  his  ticket,  but  he  refused  to  accept  it.  Similar  testimony 
was  introduced,  also  subject  to  the  plaintiff's  objections  and  exceptions, 
of  other  accommodations  offered  to  him  and  refused.  The  jury  re- 
turned a  verdict  for  the  plaintiff  for  nominal  damages,  and  the  case  is 
here  on  exceptions  by  the  plaintiff"  to  the  introduction  of  the  evidence 
above  referred  to,  and  to  the  refusal  of  the  judge  to  give  certain  rulings 
that  were  requested,  and  to  the  charge  so  far  as  inconsistent  with  the 
rulings  thus  asked  for. 

It  is  clear  that  there  was  a  breach  of  its  contract  by  the  defendant. 


1 


792  FAIRFIELD    V.    SALEM.  [cHAP.    VI. 

And  if  the  injury  to  tlie  plaintiff's  health  was  the  direct  and  proximate  M 

result  of  the  breach,  there  would  be  strong  ground  for  holding  that  the 
defendant  was  liable  in  damages  therefor,  and  for  any  inconvenience 
to  which  the  plaintiff  was  subjected.  There  was  testimony  tending  to 
show  that  drawing  rooms  were  largely  used  by  invalids,  and  possible 
injury  to  health  by  reason  of  a  breach  of  the  contract  might,  therefore, 
fairly  be  presumed  to  have  been  witliin  the  contemplation  of  the  parties 
to  it.  But  in  the  present  case  the  injury  to  the  plaintiff's  health  was  not 
the  direct  and  proximate  result  of  the  breach  Ijy  the  defendant  of  its 
contract.  There  was  an  intervening  cause,  namely,  the  plaintiff's 
refusal  to  accept  the  accommodations,  which  the  jury  must  have  found 
were  tendered  to  him,  and  his  conduct  in  going  into  an  ordinary 
passenger  car,  and  sitting  up  during  the  night's  ride  to  Washington. 
Dodd  V.  Jones,  137  IVIass.  322.  When  he  found  that  he  could  not  get 
the  drawing  room  for  which  his  ticket  called,  he  was  bound  in  the  exer- 
cise of  ordinary  prudence  to  adapt  himself  as  well  as  he  reasonably 
could,  considering  his  health,  business  and  other  matters,  to  the  circum- 
stances in  which  he  was  placed,  and  to  avail  himself,  within  those 
limits,  of  such  accommodations  as  were  offered  by  the  defendant. 
In  other  words  it  was  incumbent  on  him  to  do  what  he  reasonably 
could,  taking  all  the  circumstances  into  account,  to  lessen  the  injury 
and  not  to  aggravate  it.  Loker  v.  Damon,  17  Pick.  284.  Sutherland 
V.  Wyer,  67  Maine  64.  1  Sedg.  Damages,  (8th  ed.)  §§  201  d  seq.  The 
evidence  that  was  objected  to  was  rightly  admitted  for  the  purpose  of 
showing  that  the  alleged  consequences  of  the  breach  of  its  contract 
by  the  defendant  could  have  been  avoided  by  the  plaintiff  by  the  exer- 
cise of  reasonable  care  and  prudence  on  his  part.  We  see  no  error  in 
the  instructions  that  were  given,  or  in  the  refusal  to  give  those  that 
were  requested. 

Exceptions  overruled. 


FAIRFIELD   v.   SALEM. 
Supreme  Judicial  Court  of  Massachusetts,  1913. 

[Reported  213  Mass.  296.] 

Two  ACTIONS  OF  TORT  for  damages  resulting  from  the  discharge 
by  the  defendant  of  sewage  into  a  dock  adjoining  a  wharf  of  the  plaintiff, 
the  first  action  being  for  damages  arising  during  six  years  preceding 
June  2,  1908,  and  the  second  for  those  arising  between  that  date  and 
January  10,  1910.    Writs  dated  June  2,  1908,  and  January  10,  1910. 

In  each  action  the  declaration  contained  two  counts,  the  first  for 
expenses  caused  by  the  filling  up  of  the  dock  and  the  second  for  diminu- 
tion in  the  value  of  the  plaintifi's  real  estate  because  of  the  water  being 
rendered  unhealthy  and  offensive. 


SECT.  IV.]  FAIRFIELD  V.    SALEM.  793 

The  cases  were  referred  to  James  W.  Sullivan,  Esquire,  as  auditor. 
In  the  Superior  Court  they  were  tried  together  before  Fessenden,  J. 
The  material  facts  are  stated  in  the  opinion.  At  the  close  of  the  evi- 
dence the  defendant  requested  the  judge  to  instruct  the  jury  as  follows: 
"  If  the  jury  find  that  the  city  of  Salem  through  its  negligence  has  filled 
up  the  so  called  Fairfield  dock,  then  the  duty  of  the  plaintiff  is  to  keep 
the  damage  as  small  as  possible  and  the  measure  of  damage  in  this  case 
is  the  dredging  of  the  dock  at  such  times  as  is  necessary,  plus  the  addi- 
tional cost  of  doing  business  while  the  dock  is  being  dredged."  The 
request  was  refused. 

The  jury  found  for  the  plaintiff  in  the  first  action  in  the  sum  of 
$4,147.99,  and  in  the  second  action  in  the  sum  of  $18,877.09;  and  the 
defendant  alleged  exceptions. 

De  Courcy,  J.  The  instructions  requested  by  the  defendant  invoked 
the  rule  of  avoidable  consequences,  but  they  failed  to  recognize  the 
limitations  of  that  rule.  Although  the  plaintiff  could  recover  only  for 
the  direct  consequences  of  the  defendant's  WTong,  and  not  for  damages 
that  were  avoidable  by  the  use  of  reasonable  precautions  on  her  part, 
she  Avas  not  called  upon  to  take  unreasonable  steps  to  make  the  loss 
less  aggravated,  nor  was  she  required  to  commit  a  WTongful  act  or  to 
trespass  upon  the  property  of  another  in  order  to  abate  the  nuisance. 

The  court  could  not  rule  as  matter  of  law  that  the  plaintiff's  only 
plan  to  follow  was  that  of  dredging  the  dock  from  time  to  time,  and 
that  consequently  the  measure  of  her  reco\'ery  was  the  cost  of  such 
dredging  and  the  damage  occasioned  by  the  incidental  interference 
with  her  coal  business.  The  instructions  requested  assume  that  the 
plaintiff  was  free^to  dredge  the  dock  at  any  time;  but  this  work  must  be 
done  within  tide  water,  and  there  was  evidence  that  the  harbor  and 
land  commissioners  refused  to  give  the  necessary  permit.  R.  L.  c.  9, 
§  25.  When  she  did  get  permission  from  the  commissioners  in  1909,  it 
appears  that  a  neighbor,  Langmaid,  objected  to  any  trespass  upon  his 
dock  by  the  dredging  company,  and  that  the  work  upon  the  plaintiff's 
would  be  ineffectual  unless  the  Langmaid  dock  also  was  dredged. 
White  V.  Chapin,  102  Mass.  138.  Even  if  she  were  free  to  do  the  work 
the  jury  might  consider  that  she  was  warranted  in  relying  upon  the 
assurance  of  the  public  officials  that  the  city  would  dredge  the  dock. 
And  in  determining  what  steps  the  plaintiff  should  have  taken  to  re- 
duce the  damages  it  was  necessary  to  consider  other  elements,  such  as 
the  cost  of  doing  the  work  of  dredging,  the  number  of  times  that  it 
should  be  done  in  order  to  remove  the  filling  that  was  being  deposited 
continuously,  and  the  extent  of  interruption  of  the  plaintift"s  business. 
Clearly  these  issues  of  fact  were  for  the  jury;  and  they  were  sub- 
mitted with  instructions  that  were  clear  and  complete.  BraVton  v. 
Fall  River,  113  Mass.  218.  French  v.  Connecticut  River  Lumber  Co.  145 
Mass.  261. 

Exceptions  overruled. 


794  PAYZU,    LIMITED  V.   SAUNDERS.  [CHAP.   VI. 

PAYZU,  LIMITED   v.   SAUNDERS. 
King's  Bench  Division  and  Court  of  Appeal,  1919. 

[Reported  [1919]  2  K.  B.  581.] 

Action  tried  by  McCardie,  J.,  without  a  jury. 

By  a  contract  in  writing  dated  Noveml^er  9,  1917,  the  defendant, 
who  was  a  dealer  in  silk,  agreed  to  sell  to  the  plaintiffs  200  pieces  of 
crepe  de  chine  at  4s.  6d.  a  yard  and  200  pieces  at  5s.  lid.  a  yard,  "de- 
livery as  required  January  to  September,  1918;  conditions,  2}/^  per  cent. 
1  month,"  which  meant  that  payment  for  goods  delivered  up  to  the 
twentieth  day  of  any  month  should  be  made  on  the  twentieth  day  of 
the  following  month,  subject  to  2}/^  per  cent  discount.  At  the  request 
of  the  plaintiffs  the  defendant  delivered,  in  November,  1917,  a  certain 
quantity  of  the  goods  under  the  contract,  the  price  of  which  amounted 
to  £76,  less  2}^  per  cent  discount.  On  December  21  the  plaintiffs  drew 
a  cheque  in  favour  of  the  defendant  in  payment  of  these  goods,  but  the 
cheque  was  never  received  by  the  defendant.  Early  in  .January,  1918, 
the  defendant  telephoned  to  the  plaintiffs  asking  why  she  had  not  re- 
ceived a  cheque.  The  plaintiffs  then  drew  another  cheque,  but  owing 
to  a  delay  in  obtaining  the  signature  of  one  of  the  plaintiffs'  directors, 
this  cheque  was  not  sent  to  the  defendant  until  January  16.  On  that 
day  the  plaintiffs  gave  an  order  by  telephone  for  further  deliveries 
under  the  contract.  The  defendant  in  the  belief,  which  was  in  fact 
erroneous,  that  the  plaintiffs'  financial  position  was  such  that  they 
could  not  have  met  the  cheque  which  they  alleged  had  been  drawn  in 
December,  wrote  to  the  plaintiffs  on  January  16  refusing  to  make  any 
further  deli\'eries  under  the  contract  unless  the  plaintiffs  paid  cash  with 
each  order.  The  plaintiffs  refused  to  do  this,  and  after  some  further 
correspondence  brought  this  action  claiming  damages  for  breach  of 
contract.  The  damages  were  the  difference  between  the  market  prices 
in  the  middle  of  February,  1918,  and  the  contract  prices  of  the  two 
classes  of  goods,  the  difference  alleged  being  respectively  Is.  3d.  and 
Is.  4d.  a  yard. 

McCardie,  J.  ...  A  serious  question  of  law  arises  on  the  question 
of  damages.  I  find  as  a  fact  that  the  defendant  was  ready  and  willing 
to  supply  the  goods  to  the  plaintiffs  at  the  times  and  prices  specified 
in  the  contract,  provided  the  plaintiffs  paid  cash  on  delivery.  Mr. 
Matthews  argued  with  characteristic  vigour  and  ability  that  the  plain- 
tiffs were  entitled  to  ignore  that  offer  on  the  ground  that  a  person  who 
has  repudiated  a  contract  cannot  place  the  other  party  to  the  contract 
under  an  obligation  to  diminish  his  loss  by  accepting  a  new  offer  made 
by  the  party  in  default. 

The  question  is  one  of  juristic  importance.    What  is  the  rule  of  law 


I 


SECT.    IV.]  PAYZU,   LIMITED   V.   SAUNDERS.  795  , 

as  to  the  duty  to  mitigate  damages?  I  will  first  refer  to  the  judgment 
of  Cockburn,  C.  J.  in  Frost  v.  Knight  ((1872)  L.  R.  7  Ex.  Ill,  115), 
where  he  said:  "In  assessing  the  damages  for  breach  of  performance, 
a  jury  will  of  course  take  into  account  whatever  the  plaintiff  has 
done,  or  has  had  the  means  of  doing,  and,  as  a  prudent  man,  ought 
in  reason  to  have  done,  whereby  his  loss  has  been,  or  would  have 
been,  diminished."  This  rule  is  strikingly  exemplified  in  Brace  v.  Calder 
([1895]  2  Q.  B.  253).  There  the  plaintiff  claimed  damages  for 
wrongful  dismissal.  He  had  been  employed  as  manager  of  a  busi- 
ness carried  on  by  four  persons  in  partnership.  In  the  course  of  his 
employment  two  of  the  partners  retired,  and  the  business  continued 
to  be  carried  on  by  the  two  remaining  partners.  The  plaintiff  resented 
his  technical  dismissal  which  resulted  from  the  dissolution  of  the  part- 
nership, and  declined  to  serve  the  two  remaining  partners;  and  he 
brought  an  action  against  the  original  firm  claiming  damages  for  wrong- 
ful dismissal.  There  was  a  difference  of  opinion  in  the  Court  of  Appeal 
as  to  whether  the  plaintiff  had  been  wrongly  dismissed,  but  the  mem- 
bers of  the  Court  were  unanimously  of  opinion  that  the  plaintiff  as  a 
prudent,  reasonable  man  should  have  accepted  the  offer  of  the  two  re- 
maining partners  to  retain  him  in  their  service,  and  that  he  was  there- 
fore entitled  to  nominal  damages  only.  I  think  that  the  substance  of 
the  rule  which  I  have  indicated  was  also  laid  down  by  the  House  of 
Lords  in  British  Westinghouse  Electric  and  Manufacturing  Co.  v. 
Underground  Electric  Railways  Co.  of  London  ([1912]  A.  C.  673,  689), 
where  Lord  Haldane  said:  "The  fundamental  basis  is  thus  com- 
pensation for  pecuniary  loss  naturally  flowing  from  the  breach;  but 
this  first  principle  is  qualified  by  a  second,  which  imposes  on  a  plain- 
tiff the  duty  of  taking  all  reasonable  steps  to  mitigate  the  loss  conse- 
quent on  the  breach,  and  debars  him  from  claiming  any  part  of  the 
damage  which  is  due  to  his  neglect  to  take,  such  steps." 

The  question,  therefore,  is  what  a  prudent  person  ought  reasonably 
to  do  in  order  to  mitigate  his  loss  arising  from  a  breach  of  contract. 
I  feel  no  inclination  to  allow  in  a  mercantile  dispute  an  unhappy  indul- 
gence in  far-fetched  resentment  or  an  undue  sensitiveness  to  slights  or 
unfortunately  worded  letters.  Business  often  gives  rise  to  certain 
asperities.  But  I  agree  that  the  plaintiffs  in  deciding  whether  to  accept 
the  defendant's  offer  w^ere  fully  entitled  to  consider  the  terms  in  which 
the  offer  was  made,  its  bona  fides  or  otherwise,  its  relation  to  their  own 
business  methods  and  financial  position,  and  all  the  circumstances  of 
the  case;  and  it  must  be  remembered  that  an  acceptance  of  the  offer 
would  not  preclude  an  action  for  damages  for  the  actual  loss  sustained. 
Many  illustrations  might  be  given  of  the  extraordinary  results  which 
would  follow  if  the  plaintiffs  were  entitled  to  reject  the  defendant's 
offer  and  incur  a  substantial  measure  of  loss  which  would  have  been 
avoided  by  their  acceptance  of  the  offer.  The  plaintiffs  were  in  fact 
in  a  position  to  pay  cash  for  the  goods,  but  instead  of  accepting  the  de- 


» 


796  PAYZU,    LIMITED    V.    SAUNDERS.  [cHAP.    VI. 

fendant's  ofFer,  which  was  made  perfectly  bona  fide,  the  plaintiffs 
permitted  themselves  to  sustain  a  large  measure  of  loss  which  as  prudent 
and  reasonable  people  they  ought  to  have  avoided.  But  the  fact  that 
the  plaintiffs  have  claimed  damages  on  an  erroneous  principle  does  not 
preclude  me  from  awarding  to  them  such  damages  as  they  have  in  fact 
suffered,  calculated  upon  the  correct  basis.  See  Corj^  r.  Thames  Iron- 
works and  Shipbuilding  Co.  ((1868)  L.  R.  3  Q.  B.  181).  They  have 
suffered  serious  and  sul)stantial  business  inconvenience,  and  I  con- 
ceive  that  I  am  entitled  to  award  them  damages  for  that.  The 
authorities  are  conA'eniently  collected  in  i\rnold  on  Damages  at  p.  13. 
Moreover,  even  if  the  plaintiffs  had  accepted  the  defendant's  offer, 
they  would  nevertheless  have  lost  the  very  useful  period  of  credit 
which  the  contract  gave  them.  Taking  into  consideration  all  the  cir- 
cumstances of  the  case  I  have  come  to  the  conclusion  that  the  right 
sum  to  award  as  damages  is  £50.  I  give  judgment  for  the  plaintiffs  for 
that  amount,  and  in  view  of  the  important  points  involved  I  give 
costs  on  the  High  Court  scale.  Judgment  for  plavitiffs. 

The  plaintiffs  appealed  on  the  question  of  damages. 

Bankes,  L.  J.  At  the  trial  of  this  case  the  defendant,  the  present 
respondent  raised  two  points:  first,  that  she  had  committed  no  breach 
of  the  contract  of  sale,  and  secondly  that,  if  there  was  a  breach,  yet  she 
had  offered  and  was  always  ready  and  willing  to  supply  the  pieces  of 
silk,  the  subject  of  the  contract,  at  the  contract  price  for  cash;  that  it 
was  unreasonable  on  the  part  of  the  appellants  not  to  accept  that  offer, 
and  that  therefore  they  cannot  claim  damages  beyond  what  they 
would  have  lost  by  paying  cash  with  each  order  instead  of  having  a 
month's  credit  and  a  discount  of  23^  per  cent.  We  must  take  it  that 
this  was  the  offer  made  by  the  respondent.  The  case  was  fought  and 
the  learned  judge  has  given  judgment  upon  that  footing.  It  is  true 
that  the  correspondence  suggests  that  the  respondent  was  at  one  time 
claiming  an  increased  price.  But  in  this  Court  it  must  be  taken  that 
the  offer  was  to  supply  the  contract  goods  at  the  contract  price  except 
that  payment  was  to  be  by  cash  instead  of  being  on  credit. 

In  these  circumstances  the  only  question  is  whether  the  appellants 
can  establish  that  as  matter  of  law  they  were  not  bound  to  consider  any 
offer  made  l)y  the  respondent  because  of  the  attitude  she  had  taken  up. 
Upon  this  point  McCardie,  J.,  referred  to  British  Westinghouse  Electric 
and  Manufacturing  Co.  r.  Underground  Electric  Railways  Co.  of 
London,  ([1912]  A.  C.  673,  689),  where  Lord  Haldane,  L.  C,  said: 
"The  fundamental  basis  is  thus  compensation  for  pecuniary  loss 
naturally  flowing  from  the  breach;  but  this  first  principle  is  qualified 
by  a  second  which  imposes  on  a  plaintiff  the  duty  of  taking  all 
reasonable  steps  to  mitigate  the  loss  consequent  on  the  breach,  and 
debars  him  from  claiming  any  part  of  the  damage  which  is  due  to  his 
neglect  to  take  such  steps.     In  the  words  of  James,  L.  J.,  in  Dunkirk 


SECT.    IV.]  BRIDGEPORT    V.    .ETNA    INDEMNITY   CO.  797 

Colliery  Co.  v.  Lever  ((1878)  9  Ch.  D.  20,  25):  'What  the  plain- 
tiffs are  entitled  to  is  the  full  amount  of  the  damage  which  they  have 
really  sustained  by  a  breach  of  the  contract.  The  person  who  has 
broken  the  contract  not  being  exposed  to  additional  cost  by  reason  of 
the  plaintiffs  not  doing  what  they  ought  to  have  done  as  reasonal)le 
men,  and  the  plaintiff's  not  being  under  any  obligation  to  do  anything 
otherwise  than  in  the  ordinary  course  of  business.'"  It  is  plain  that 
the  question  what  is  reasonable  for  a  person  to  do  in  mitigation  of  his 
damages  cannot  be  a  question  of  law  but  must  be  one  of  fact  in  the 
circumstances  of  each  particular  case.  There  may  be  cases  where  as 
matter  of  fact  it  would  be  unreasonable  to  expect  a  plaintiff'  to  consider 
any  offer  made  in  view  of  the  treatment  he  has  received  from  the  defend- 
ant. If  he  had  been  rendering  personal  ser^dces  and  had  been  dismissed 
after  being  accused  in  presence  of  others  of  being  a  thief,  and  if  after 
that  his  employer  had  ott'ered  to  take  him  back  into  his  ser\ice,  most 
persons  would  think  he  was  justified  in  refusing  the  offer,  and  that  it 
would  be  unreasonable  to  ask  him  in  this  way  to  mitigate  the  damages 
in  an  action  of  wrongful  dismissal.  But  that  is  not  to  state  a  principle  of 
law,  but  a  conclusion  of  fact  to  be  arrived  at  on  a  consideration  of  all 
the  circumstances  of  the  case.  Mr.  Matthews  complained  that  the  re- 
spondent had  treated  his  clients  so  badly  that  it  would  be  unreasonable 
to  expect  them  to  listen  to  any  proposition  she  might  make.  I  do  not 
agree.  In  my  view  each  party  was  ready  to  accuse  the  other  of  conduct 
unworthy  of  a  high  commercial  reputation,  and  there  was  nothing  to 
justif}^  the  appellants  in  refusing  to  consider  the  respondent's  offer. 
I  think  the  learned  judge  came  to  a  proper  conclusion  on  the  facts,  and 
that  the  appeal  must  be  dismissed. 

ScRUTTON,  L.  J.,  and  Eve,  J.,  concurred. 

Appeal  dismissed. 


BRIDGEPORT  v.  MTNA  INDEMNITY  CO. 
Supreme  Court  of  Errors  of  Connecticut,  1919. 

[Reported  105  Atl.  Rep.  680.] 

Action  for  breach  of  a  contract  by  which  oneW  inton  agreed  to  reduce 
the  city's  garbage,  offal  and  dead  animals,  for  a  period  of  ten  years, 
for  fifty  cents  a  ton.  Winton's  assignee  abandoned  the  contract  when 
it  had  four  years  to  run.  The  city  then  adAcrtised  for  bids  for  the  dis- 
posal of  this  refuse  for  each  of  four  periods,  three,  five,  ten  and  twenty 
years,  and  finally  accepted  the  bid  of  one  Fischer,  the  lowest  responsible 
bidder,  who  offered  to  perform  the  work  for  ten  years  for  the  price  of 
$1  per  ton;  the  contract  contained  certain  terms,  favoral)le  to  the  city, 
in  addition  to  those  of  the  \\'inton  contract.    The  lowest  price  at  which 


798  BRIDGEPORT  V.   ^TNA   INDEMNITY   CO.  [CFIAP.   VI. 

tlie  city  could  have  made  such  a  contract  for  the  balance  of  the  term 
was  $2  a  ton.  It  now  sues  the  bondsman  on  the  contract  for  the  differ- 
ence in  price  between  the  Winton  and  the  Fischer  contracts  during 
the  remainder  of  the  original  term.^ 

Prentice,  C.  J.  All  of  the  reasons  of  appeal  relate  to  the  action  of 
the  court  below  in  accepting  against  remonstrance  the  report  of  its 
committee  to  whom  was  referred  the  duty  of  hearing  the  evidence 
touching  the  extent  to  w'hich  the  city  had  been  damaged  by  reason 
of  the  by-products  company's  breach  of  its  contract  and  of  reporting  its 
conclusions  thereon.  The  complaints,  made  in  somewhat  varying 
forms,  are  in  substance  that  the  committee  acted  improperly  and  harm- 
fully to  the  indemnity  company  in  using  in  any  way  the  Fischer  con- 
tract as  a  factor  or  guide  in  the  determination  of  the  extent  to  which 
the  city  had  been  damaged,  and  that  the  manner  of  its  use  by  the  com- 
mittee amounted  to  a  misuse  of  it. 

The  indemnity  company's  obligation  as  surety  on  the  bond  guaran- 
teeing the  by-products  company's  faithful  performance  of  its  contract 
is  measured  by  the  loss  up  to  $10,000  which  the  city  suffered  from  the 
by-products  company's  failure  in  performance.  When  the  breach 
occurred  by  the  by-products  company's  cessation  of  service,  the  ten- 
year  contract  had  four  years  to  run.  The  lowest  price  at  which  the 
city  could  have  procured  the  reduction  and  disposition  of  its  garbage 
and  dead  animals  as  undertaken  by  the  by-products  under  its  contract 
commonly  known  as  the  Winton  contract  for  a  four-year  period,  would 
have  been  $2  a  ton.  Under  the  circumstances,  it  was  the  city's  moral 
and  legal  duty  to  take  such  action  as  it  could,  reasonably  and  with  due 
regard  for  its  own  interests,  to  the  end  that  the  damage  to  it  resulting 
from  the  breach  might  be  kept  down  to  the  minimum.  Hamilton  v. 
McPherson,  28  N.  Y.  72,  76;  84  Am.  Dec.  330;  18  Cyc.  72. 

Acting  in  conformity  with  the  duty  thus  resting  upon  it,  the  city, 
immediately  following  the  breach,  advertised  for  bids  for  the  disposal 
of  its  garbage  for  varying  periods.  As  the  ultimate  result  a  contract 
was  entered  into  upon  the  best  available  bid  with  one  Fischer  for  a  ten- 
year  period  beginning  January  7,  1911,  and  at  a  price  of  %1  per  ton. 
Under  this  contract  the  city's  garbage  and  dead  animals  were  disposed 
of  until  the  expiration  of  the  time  period  of  the  Winton  contract  and 
afterwards.  The  Fischer  contract  called  for  the  performance  of  the 
same  service  as  did  the  Winton  and  by  the  same  method,  to  wit,  reduc- 
tion, and  was  similar  to  the  latter  contract  in  all  material  particulars 
save  for. the  incorporation  of  four  additional  provisions. 

When  the  contract  was  entered  into  i,with  Fischer,  the  city  was  faced 
by  certain  conditions.  Its  duty  was  to  minimize  as  far  as  it  reasonably 
could  its  loss  by  reason  of  the  by-products  company's  breach.  It  could 
not  secure  a  contract  limited  to  the  remaining  period  of  the  Winton 
contract  which  would  not  entail  a  heavy  and  inordinate  burden  of  loss. 

'  This  short  statement  of  facts  is  substituted  for  that  of  the  Reporter.  —  Ed. 


SECT.    IV.]  BRIDGEPORT   V.    iETNA    INDEMNITY   CO.  799 

It  could  not  contract  for  a  more  extended  period  than  the  balance  of  the 
Winton  period  upon  the  Winton  terms  unchanged  without  placing  upon 
itself  for  the  whole  period  of  the  new  contract,  including  that  portion  of 
it  which  extended  beyond  the  date  of  the  expiration  of  the  Winton  term, 
any  burden  imposed  by  unsatisfactory  terms  contained  in  the  Winton 
contract  or  by  the  absence  therefrom  of  desired  provisions.  It  was 
placed  in  the  position  where  it  was  impossible  for  it  to  reduce  its  loss 
below  one  of  SI. 50  a  ton  and  at  the  same  time  retain  its  freedom  to 
contract  for  the  time  beyond  the  expiration  of  the  Winton  term  as  should 
meet  its  wishes.  If  the  Winton  contract  was  not  altogether  satisfactory, 
as  apparently  it  was  not,  the  city  was  driven  to  one  of  three  alternative 
courses.  It  could  either  enter  into  a  contract  for  the  remaining  years  of 
the  Winton  term,  in  which  case  the  resulting  damage  would  remain  at 
an  inordinately  high  figure,  or  it  could  execute  one  for  a  longer  period 
containing  such  modification  as  it  desired  for  its  protection  in  the  years 
to  come  after  the  Winton  contract  had  run  its  ten-year  course,  or  it 
could,  unmindful  of  its  own  interests,  contract  for  a  long  period  upon 
the  Winton  terms. 

The  second  of  these  courses  was  pursued,  with  the  result  that 
the  cost  of  reduction  and  disposal  was  reduced  one  half  and  the 
desired  protection  of  the  city's  interest  at  the  same  time  secured.  As 
the  new  contract  was  obtained  after  open  and  public  competition 
and  upon  what  were  apparently  the  best  available  terms  and  the  loss 
to  the  city  resulting  from  the  breach  of  the  Winton  contract  was  thereby 
reduced  at  least  from  $1.50  to  50  cents  a  ton,  while  at  the  same  time 
the  modifications  made  in  the  new  contract  were  only  minor  ones  afford- 
ing the  city  desired  protection  in  its  execution  after  May  27,  1914, 
there  would  seem  to  be  slight  ground  indeed  for  a  claim  that  the  city 
had  not  acted  fairly  and  reasonal)ly  in  the  matter  and  had  not  performed 
its  full  duty  of  taking  reasonable  action  to  minimize  its  loss  from  the 
by-products  company's  breach.  It  was  under  no  obligation  to  enter 
into  a  long  term  of  contract  for  the  defaulting  company's  protection 
entirely  regardless  of  the  former's  interest  covering  the  years  which 
would  follow  the  termination  of  the  contract  broken.  Its  duty  to  the 
defaulting  company  was  to  do  what  was  reasonable  under  the  circum- 
stances, that  the  damages  suffered  by  it  might  be  kept  down  and  that 
only.  It  was  under  no  obligation  to  do  its  utmost  to  that  end  without 
regard  to  its  own  interests,  thereby  exalting  the  company's  interests 
above  its  own.  The  test  of  reasonableness  was  one  which  had  a  broader 
outlook  and  took  into  account  all  the  circumstances  of  the  situation. 

These  considerations  effectually  dispose  of  the  receiver's  contention 
that  the  indemnity  company  was  discharged  and  released  from  liability 
upon  its  bond  in  excess  of  nominal  damages  by  the  execution  of  the 
Fischer  contract.  The  fact  that  the  l)y-products  company,  by  its 
letter  of  July  14,  1910,  and  before  the  Fischer  contract  was  executed, 
made  the  conditional  offer  it  did  to  resume  work  under  its  contract,  does 


800  BRroOEPORT   V.    MT-NA    INDEMNITY   CO.  [CIIAP.    VI. 

not  change  the  situation.  Bridgeport  v.  xEtna  Indemnity  Co.,  91 
Conn.  197,  209,  99  Atl.  566. 

As  the  Fischer  contract  was  one  which  the  city  might  reasonably 
have  entered  into  and  for  aught  that  appears  was  entered  into  fairly 
and  upon  the  best  available  terms,  it  follows  that  the  committee  Avas 
fully  justified  in  taking  cognizance  of  it  and  using  it  as  a  factor  in  its 
determination  of  the  extent  of  the  damages  the  city  suffered  by  reason 
of  the  by-products  company's  breach  of  its  contract  and  as  a  guide  in 
such  determination  in  so  far  as  it  might  be  helpful.  Had  it  conformed 
in  all  respects  to  the  Winton  contract,  excepting  in  the  matter  of  dates 
and  price,  no  exception  could  be  taken  to  its  use  as  fixing  definitely  and 
precisely  the  extent  of  the  city's  damage.  Its  four  additional  para- 
graphs, apparently  embodying  provisions  favorable  to  the  city,  forbid 
such  use  to  be  made  of  it,  at  least  without  further  inquiry.  Their  pres- 
ence does  not,  however,  forbid  its  use-as  a  basis  of  computation  if  so  be  it 
furnishes  a  reasonable  and  helpful  one.  That  it  does  furnish  such  basis 
is  clear.  The  two  contracts  require  of  the  contractor  the  doing  of 
the  same  service  and  by  the  same  method.  The  main  provisions  of 
the  two  are  alike  in  all  material  respects.  The  variations  from  the 
\Yinton  contract  embodied  in  the  four  additional  provisions  of  the 
Fischer  contract  are  so  far  minor  and  incidental  and  so  far  susceptible  of 
separable  consideration  and  estimate  that  appraisal  with  reasonable 
accuracy  of  the  additional  burden  imposed  by  them  upon  the  contractor 
presents  a  V)y  no  means  difficult  problem.  Due  deductions  from  the 
price  fixed  in  the  Fischer  contract  being  made  for  any  increased  cost 
by  reason  of  these  variations,  a  result  will  be  arrived  at  which  will  ap- 
proximate more  nearly  to  the  precise  than,  would  any  other  method 
which  the  circumstances  suggest  as  available.  Precision  and  certainty 
are  not  required.    Satchwell  v.  Williams,  40  Conn.  371,  374. 

Counsel  for  the  receiver  is,  of  course,  quite  right  in  sa\ang  that  the 
city  is  not  entitled  to  obtain,  under  the  guise  of  the  allowance  of  a  claim, 
reimbursement  for  what  it  had  expended  for  a  better  or  variant  service. 
But  that  is  preciselywhat  is  not  done  by  the  use  of  the  Fischer  contract 
as  the  basis  of  determination  with  proper  allowances  made  for  modifi- 
cations of  the  terms  of  the  Winton  contract  appearing  in  the  former. 

This  was  the  course  the  committee  pursued.  It  took  the  price  per 
ton  which  the  city  was  required  to  pay  under  the  Fischer  contract,  and 
made  such  deductions  therefrom  as  it  found  was  reasonable  on  account 
of  the  incorporation  of  the  four  provisions  referred  to,  and  found  that 
85  cents  a  ton  represented  the  "cost  to  the  city  of  obtaining  the  service 
which  the  Winton  contract  required  the  contractor  to  render  and  under 
the  same  incidental  conditions  which  the  Winton  contract  imposed. 

It  remains  to  inquire  whether  the  committee,  in  its  employment  of 
that  method  and  its  application  of  it  to  the  circumstances  of  the  case  as 
found,  erred.  As  bearing  upon  this  inquiry,  it  is  to  be  remembered  that 
the  questions  here  at  issue  are  those  of  fact  pure  and  simple.    The  con- 


SECT.    IV.]  BRIDGEPORT   V.    ^TNA    INDEMNITY   CO.  801 

elusions  of  the  committee  must  therefore  stand,  unless  they  are  such 
as  could  not  reasonably  have  been  arrived  at  upon  the  subordinate  facts 
found. 

The  first  of  the  additional  provisions  required  the  contractor  to 
accept  from  the  city  garbage  containing  as  high  as  10  per  cent  of 
foreign  and  extraneous  matter  whereas  the  Winton  contract  made  no 
specifications  upon  that  subject.  x\t  the  time  of  the  former  appearance 
of  this  case  before  us,  we  held  that,  notwithstanding  the  absence  of 
such  specification  from  the  Winton  contract,  the  contractor  could  not 
complain  of  the  presence  of  5  per  cent  of  foreign  matter  in  the  garbage 
delivered  to  it,  and  was  in  duty  bound  under  its  contract  to  reduce  gar- 
bage containing  that  quantity  of  foreign  matter.  Bridgeport  v.  iEtna 
Indemnity  Co.,  91  Conn.  197,  208,  99  Atl.  566.  The  committee  has 
found  that  the  cost  of  the  removal  of  an  additional  5  per  cent  of  foreign 
matter,  if  it  were  present,  would  amount  to  from  15  to  20  cents  a  ton. 

The  second  in  the  order  of  enumeration  of  the  additional  clauses  im- 
posed upon  Fischer  little,  if  any,  restraint  to  his  freedom  of  action  or 
burden  of  any  sort  from  which  the  by-products  company  under  the  Win- 
ton contract  was  free.  Whether  the  agreement  under  which  a  contractor 
is  operating  in  the  reduction  of  garbage  speaks  upon  the  subject  or  is 
silent,  he  is  subject  to  the  reasonable  regulations  of  health  authorities 
and  is  under  the  duty  to  observe  the  sanitary  regulation  of  such  au- 
thorities and  to  conduct  his  business  in  such  manner  as  not  to  create  a 
nuisance. 

The  remaining  additional  clauses  relate  to  matters  which,  in  view  of 
the  committee's  finding  that  a  plant  erected  for  the  reduction  of  25  tons 
of  garbage  a  day  is  adapted  for  reduction  of  from  35  to  50  tons  a  day  by 
the  use  of  more  coal  and  its  operation  of  longer  hours,  are  manifestly  of 
comparatively  small  importance  as  bearing  upon  the  cost  per  ton  of 
reduction. 

Whether  this  last  statement  be  true  or  not,  the  finding  of  the  com- 
mittee that  Fischer's  bid  was  made  without  reference  to  either  of  the 
four  conditions  emunerated  and  without  knowledge  that  either  of  them 
would  be  incorporated  into  the  contract  when  executed,  that  the  con- 
tract with  him  was  made  in  accordance  with  that  bid,  that  F'ischer,  in 
the  execution  of  his  contract,  did  not  regard  either  of  them  as  imposing 
upon  him  an  extra  burden  justifying  him  in  asking  a  figure  in  excess  of 
that  named  in  his  bid,  and  that  he  executed  a  contract  which  recognized 
no  such  additional  imposition,  suffices  to  render  the  court's  refusal  to 
make  a  greater  reduction  from  the  .l^l  rate,  at  which  the  service  was 
undertaken  and  performed  by  Fischer  than  that  of  15  cents  on  ac- 
count of  anything  contained  in  the  four  provisions  first  appearing  in  his 
contract,  one  which  can  be  pronounced  unreasonable. 

There  is  no  error. 

The  other  Judges  concurred. 


802  NORSKE  AMERIEKALINJE  V.  SUN  PRINTING,  ETC.,  ASSO.  [cHAP.  VI. 


DEN  NORSKE  AIMERIEKALINJE  ACTIESSELSKABET  v.  SUN 
PRINTING  AND  PUBLISHING  ASSOCIATION. 

Court  of  Appeals,  New  York,  1919. 

[Reported  226  N.  Y.  1.] 

HiscocK,  C.  J.  In  this  action  for  libel  plaintiff  has  alleged  and  is 
seeking  to  recover  as  part  of  its  damages  certain  expenses  incurred 
publishing  denials  of  the  truth  of  the  offending  article  for  the  purpose 
of  averting  and  minimizing  its  damages.  On  motion  these  allegations 
were  stricken  out  of  the  complaint  as  irrelevant  on  the  theory  that 
plaintiff  could  not  recover  such  damages  and  the  question  now  presented 
to  us  by  certification  is  whether  this  should  have  been  done.  It  is 
essential  to  an  intelligent  discussion  of  the  question  to  state  the  facts 
presenting  it  as  they  are  set  out  in  the  complaint. 

Plaintiff  is  a  corporation  created  by  and  existing  under  the  laws  of 
the  Kingdom  of  Norway.  On  July  7,  1917,  and  for  some  time  prior 
thereto  it  had  been  engaged  in  operating  a  line  of  steamers  between 
New  York  and  Norw^ay  which  carried  both  passengers  and  freight  and 
it  "  had  an  established  credit  and  achieved  a  reputation  and  good  name, 
and  high  esteem  for  honesty,  integrity  and  ability  in  the  conduct  of  its 
said  business  and  in  the  carrying  out  of  its  obligations  and  agreements." 
On  the  date  mentioned  one  of  its  steamers  sailed  from  New  York  for 
Norway  carrying  a  large  list  of  passengers  and  a  large  amount  of  freight. 
It  went  ashore  near  Cape  Race  on  July  15th  and  w^s  compelled  to  call 
for  the  assistance  of  a  WTecking  ship. 

At  this  time  the  defendants  Avere  engaged  in  publishing  a  newspaper 
which  was  in  general  circulation  throughout  the  city  of  New  York  and 
elsewhere  and  on  August  6th,  1917,  they,  as  alleged,  "falsely  and 
maliciously  composed  and  published  and  caused  to  be  published  con- 
cerning the  plaintiff,  in  said  newspaper"  the  offending  article  which 
read  as  follows: 

"Wreck  Works  A  Sea  Change 
"'cargo  of  grain'  transmuted 
"into  copper  and  lead 

,  "on    A    SCANDINAVIAN    LINER 

"  Craft  Went  Ashore  near  Cape  Race 
on  July  1.5. 
"  The  WTecking  ship  Rescue,  which  returned  today  from  Newfound- 
land waters,   reported   that  the  wrecked   steamship  Kristianiafjord, 
when  grounded  seven  miles  west  of  Cape  Race,  on  July  15,   was  found 
to  be  heavily  laden  with  copper  and  lead. 

"  The  wreckers  said  that  they  assisted  in  taking  from  the  hold  of  the 


SECT.  IV.]  NORSKE  .AJVIERIEKALINJE  V.  SUN  PRINTING,  ETC.,  ASSO.    803 

stranded  vessel  a  15,000  ton  cargo  of  boxes,  containing  principally 
ingots  of  copper  and  bars  of  lead.    The  metal  had  been  securely  cased. 

"The  Kristianiafjord,  the  greatest  of  Scandinavian  merchantmen, 
belonging  to  the  Norwegian-American  Line  (meaning  the  plaintiff) 
sailed  from  New  York,  July  7  with  1200  passengers,  one  of  the  biggest 
passenger  lists  of  war  times,  and  '  great  cargo  of  general  merchandise, 
including  a  vast  quantity  of  grain,'  as  ship  news  repoHed  at  the  time. 

"  A  few  days  later  she  arrived  at  Halifax  and  the  British  overhauled 
her.  Among  her  passengers  were  several  Germans  who  until  recently 
had  been  attached  to  the  Swiss  Legation  in  Washington,  including 
Heinrich  Schaffhausen,  Count  von  Bernstorff's  right  hand  man. 

"  By  what  process  a  cargo  '  principally  of  grain '  was  transmuted  into 
one  principally  of  copper  and  lead  the  crew  of  the  Rescue  did  not  at- 
tempt to  say." 

All  of  this  article  is  asserted  to  have  been  false  except  certain  state- 
ments therein  which  are  immaterial  in  this  discussion  and  it  is  claimed 
in  substance  that  the  fair  meaning  intended  to  be  and  actually  con- 
veyed by  it  was  that  the  plaintiff  fraudulently  and  illegally  misrepre- 
sented the  nature  of  the  cargo  contained  in  its  ship  by  falsifying  the 
manifest  and  other  documents  and  that  it  was  engaged  in  violating 
the  laws  of  this  country  by  conveying  under  circumstances  of  conceal- 
ment and  misrepresentation  a  large  supply  of  copper  to  Norway, 
whence  it  could  be  easily  transported  to  the  Central  Powers  with  which 
we  were  then  at  war,  and  which  in  accordance  with  general  knowledge 
were  much  in  need  of  said  material.  Then  follow  the  allegations  drawn 
in  question  on  this  appeal  that  on  failure  of  defendants  to  retract  said 
article  as  immediately  demanded  "  and  in  order  to  minimize  the  damage 
and  injury  to  its  reputation  and  credit,  plaintiff  was  oV)liged  to  and 
did  cause  denials  of  such  false  and  defamatory  statements  to  be  made  in 
newspapers  published  and  circulated  in  the  city  of  New  York  and  else- 
where throughout  the  United  States,  at  an  expense  of  S2,722,  which  it 
was  obliged  to  and  did  pay.  ..." 

The  rule  is  of  general  and  widespread  application  that  one  who  has 
been  injured  either  in  his  person  or  his  property  by  the  wrongful  act 
or  default  of  another  is  under  an  obligatory  duty  to  make  a  reasonable 
effort  to  minimize  the  damages  liable  to  result  from  such  injury,  and 
that  if  he  does  not  make  such  reasonable  effort  he  will  be  debarred  from 
recovering  for  those  additional  damages  which  result  from  such  failure. 
Familiar  illustrations  of  this  rule  are  found  in  the  requirement  that 
one  who  is  threatened  with  damages  as  the  result  of  a  breach  of  a  con- 
tract of  employment  must  make  a  reasonable  effort  to  find  employment 
elsewhere  (Howard  v.  Daly,  61  N.  Y.  362;  Johnson  v.  Meeker,  96  N.  Y. 
93,  97);  that  one  whose  property  is  threatened  by  the  negligence  of 
another,  as  by  a  defective  sewer  or  sparks  cast  from  a  locomotive, 
must  make  proper  efforts  to  stay  the  damages  (Toledo,  Peoria  &  W. 
Ry.  Co.  V.  Pindar,  53  111.  447;  Van  Pelt  v.  City  of  Davenport,  42 


804  NORSKE  AMERIEKALINJE  V.  SUN  PRINTING,  ETC.,  ASSO.   [CHAP.  VI. 

Iowa,  313);  that  one  whose  person  is  injured  by  the  carelessness  of 
another  must  make  a  reasonable  attempt  to  cure  or  mitigate  the  injury 
and  stop  the  damages  (Alberti  v.  N.  Y.,  L.  E.  &  W.  R.  R.  Co.,  118 
N.  Y.  77;  Pullman  Palace  Car  Co.  r.  Bluhm,  109  111.  20). 

Then  it  is  held  as  a  natural  corollary  to  this  rule  of  duty  not  only 
that  the  injured  party  who  makes  a  successful  effort  to  avoid  or  reduce 
damages  will  be  allowed  to  recover  the  expenses  necessarily  incurred  in 
so  doing,  but  also  that  he  will  be  allowed  to  recover  the  expenses  of  a 
proper  effort  even  though  it  proves  unsuccessful.  The  scope  of  the 
effort  and  the  limit  upon  the  expenses  for  which  he  may  recover,  espe- 
cially in  the  latter  case,  are  naturally  defined  by  different  words  in  differ- 
ent cases.  But  from  them  all  we  think  the  general  rule  may  be  fairly 
deduced  that  the  effort  must  be  made  in  good  faith,  that  it  must  be 
conducted  with  reasona])le  skill,  prudence  and  efficiency,  that  it  must 
be  reasonably  warranted  by  and  proportioned  to  the  injury  and  con- 
sequences to  be  averted,  and  that  it  must  be  made  under  a  belief 
reasonably  justified  that  it  will  avoid  or  reduce  the  damages  otherwise 
to  be  apprehended  from  the  wrong  complained  of.  (Baldwin  v.  U.  S. 
Tel.  Co.,  45  X.  Y.  744,  753;  Wright  v.  Bank  of  the  Metropolis,  110  N.  Y. 
237;  Kelley,  Maus  &  Co.  v.  La  Crosse  Carriage  Co.,  120  Wis.  84;  Van 
Pelt  V.  City  of  Davenport,  42  la.  313,  314;  Sherman  Center  Town  Co. 
V.  Leonard,  56  Kan.  354;  Davis  v.  Fish,  1  Greene  [la.],  406;  Pullman 
Palace  Car  Co.  v.  Bluhm,  109  111.  20;  Beidler  v.  Sanitary  Dist.,  211 
111.  639;  Toledo,  P.  &  W.  Ry.  Co.  v.  Pindar,  53  111.  447;  Watson  v. 
Lisbon  Bridge,  14  Me.  201;  Ellis  v.  Hilton,  78  Mich.  150.) 

But  these  cases  wherein  and  whereby  the  rule  of  duty  has  been  es- 
tablished do  not  involve  instances  of  intentional  injury  to  or  invasion 
of  the  rights  of  person  or  property.  Although  the  act  complained  of  was 
unlawful  as  in  breach  of  contract,  or  negligent,  it  was  not  performed 
with  malicious  or  wilful  intent  to  injure,  and  a  distinction  very  well 
may  be  drawTi  between  the  two  classes  of  cases  in  respect  of  any  duty 
which  would  rest  upon  the  injured  party.  (Athens  Mfg.  Co.  v.  Rucker, 
80  Ga.  291,  295;  Satterfield  v.  Rowan,  83  Ga.  187,  190;  Galveston, 
H.  &  S.  A.  Ry.  Co.  v.  Zeantzinger,  92  Tex.  365,  370;  Steinmetz  v.  Kelly, 
72  Ind.  448.)  The  present  libel  is  alleged  to  have  been  "falsely  and 
maliciously  composed  and  published,"  and  as  has  been  said  we  are  com- 
pelled for  present  purposes  to  take  these  allegations  as  they  are  written. 
They  may  mean  either  actual  malice  or  such  malice  as  by  legal  fiction 
is  presumed  for  the  purpose  of  reconciling  certain  other  rules  in  the 
law  of  libel.  In  either  event,  however,  the  element  of  malice  is  present 
in  the  alleged  wrong  and  we  are  not  inclined  to  hold  that  there  was 
imposed  upon  the  plaintiff  an  obligatory  burden  to  endeavor  to  avert 
its  injurious  consequences.  The  defendants  of  coui-se  do  not  assert 
any  such  obligation. 

We  do  not,  however,  regard  duty  and  right  as  entirely  correlative  in 
such  a  case.    We  think  that  the  injured  party  should  be  permitted  to 


SECT.  IV.]  NORSKE  AMERIEKALINJE  V.  SUN  PRINTING,  ETC.,  ASSO.    805 

pursue  the  latter  although  he  may  not  be  driven  by  the  former.  Abun- 
dant reasons,  in  our  opinion,  support  the  conclusion  that  the  injured 
party,  at  the  risk  of  the  WTongdoer,  should  be  allowed,  although  not 
compelled,  to  attempt  by  a  reasonable  and  proper  effort  to  prevent 
damages  liable  to  result  from  the  wrongful  act  which  has  been  com- 
mitted against  him.  The  alternative  proposition  is  that  the  MTongdoer 
has  the  right  to  insist  that  the  suffering  party  must  sit  still  and  allow 
damages  to  accumulate  on  the  possibility  that  some  time  he  may  recover 
them.  If  the  attempt  is  successful  it  is  for  the  benefit  of  the  wTongdoer 
and  it  is  obvious  that  in  securing  the  benefit  of  the  effort  he  should  pay 
the  reasonable  cost  of  it.  (Jones  v.  Morgan,  90  N.  Y.  4,  11.)  The  only 
chance  for  doubt  would  arise  where  the  purpose  failed  and  even  then 
we  think  that  if  it  is  a  proper  one  it  should  be  at  the  risk  and  expense 
of  the  wrongdoer.  It  is  his  improper  act  which  has  furnished  the  occa- 
sion and  necessity  for  the  effort,  and  he  ought  not  to  be  allowed  by  too 
narrow  or  rigid  rules  to  restrict  the  right  of  the  one  whom  he  has  injured 
to  seek  to  protect  himself  from  harm  and  loss  by  an  attempt  which  if  it 
is  successful  will  be  for  the  l^enefit  of  the  offender  himself.  Where  a 
wrong  has  been  committed  under  circumstances  which  include  the 
element  of  intentional,  wilful  and  malicious  injury,  the  author  will  be 
held  responsible  for  the  injuries  which  he  has  directly  eaused  even 
though  they  be  beyond  the  limit  of  natural  and  apprehended  results, 
as  established  in  cases  where  the  injury  was  unintentional.  (Garrison 
V.  Sun  Printing  &  Pub.  Assn.,  207  N.  Y.  1,  8.)  One  who  publishes  an 
article  concerning  a  corporation  which  so  seriously  impugns  its  methods 
of  business  that  damages  will  be  presumed  should,  we  think,  be  held 
chargeable  with  the  expense  of  a  proper  effort  to  avert  them.  The 
two  things  are  closely  connected;  one  is  an  incident  to  the  other.  In  an 
action  for  assault  and  battery  the  injured  party  is  allowed  to  recover  as 
part  of  his  damages  the  expenses  of  medical  treatment  by  which  he 
seeks  to  cure  his  injuries  and  whereby,  if  successful,  the  damages  are 
reduced.  (Smith  v.  Bagwell,  19  Fla.  117;  Schmitt  v.  Kurrus,  234  111. 
578;  Pratt  v.  Hamilton,  161  Mich.  258;  Rees  v.  Rasmussen  [Sup.  Ct. 
Neb.],  98  N.  W.  Rep.  830.)  We  are  able  to  see  no  difference  in  principle 
between  such  an  attempt  in  the  case  of  a  wanton  physical  injur;\',  and 
one  in  such  a  case  as  this  by  proper  methods  to  cure  an  injury  to  prop- 
erty and  to  minimize  the  damages  threatened  thereby. 

This  leaves  as  the  only  remaining  inquiry  the  one  whether  a  jury 
might  be  allowed  to  say  that  the  acts  alleged  to  have  been  performed 
by  plaintiff  constituted  a  proper,  reasonable  and  permissible  effort  to 
offset  the  harm  and  avert  the  damages  threatened  by  defendants' 
alleged  wrongful  act,  within  the  rules  which  we  have  already  summarized 
in  a  case  where  a  duty  rests  upon  the  injured  party.  We  think  they 
might. 

We  lm\e  the  fact  that  the  plaintiff  was  engaged  in  carrying  passen- 
gers and  freight  to  and  from  the  city  of  New  York  and  that  prior  to 


806  NORSKE  AMERIEK^A-LINJE  T.  SUN  PRINTING,  ETC.,  ASSO.   [CHAP.  VI. 

the  article  in  question  it  enjoyed  a  good  reputation  for  honest  and  effi- 
cient business  conduct  and  management.  The  article  complained  of 
on  the  view  we  are  now  assuming  directly  impugned  this  reputation 
and  course  of  business  and  was  calculated  to  affect  plaintiff's  credit  and 
business  reputation  and  cause  people  to  withdraw  their  patronage.  So 
far  as  concerns  damages  the  wrong  and  injury  were  not  consummated  and 
complete  and  "  the  harm  done  "  at  the  moment  the  article  was  published, 
as  is  argued  by  respondents.  The  results  and  damages  were  apt  to  be 
just  as  continuing  and  continuous  as  those  resulting  from  a  tortious 
personal  injury.  The  article  was  published  and  circulated  in  the  city  of 
New  York  and  under  these  circumstances  we  think  that  a  jury  would 
be  permitted  to  find  that  denials  of  the  truthfulness  of  the  allegations 
contained  in  the  libelous  article  promptly  published  and  circulated  in 
the  same  city  where  the  libel  was  circulated,  and  as  we  assume  in  proper 
language  and  wnth  reasonable  display,  were  calculated  to  reach  the 
attention  of  those  who  otherwise  might  have  been  unfavorably  affected 
by  the  original  libel,  prevent  them  from  withdrawing  their  patronage 
and  thus  minimize  plaintiff's  loss.  Of  course  we  are  dealing  with 
general  and  rather  indefinite  allegations.  The  evidence  offered  under 
these  may  or  may  not  tend  to  establish  such  an  effort  on  the  part  of  the 
plaintiff  as  will  come  within  the  rules  adverted  to.  But  reading  the 
allegations  as  they  now  appear  we  think  that  they  assert  an  effort  which 
a  jury  might  find  to  be  a  reasonable  and  promising  one  within  the  rules 
regulating  such  efforts  as  we  have  outlined  them. 

It  was  held  in  Massachusetts  (Ellis  v.  Brockton  Pub.  Co.,  198  Mass. 
538,  542),  where  the  rule  of  punitive  damages  does  not  prevail,  that 
evidence  of  a  full  and  prompt  retraction  is  admissible  for  the  purpose 
of  reducing  damages.  It  was  written:  "The  publication  of  a  retrac- 
tion, complete  in  character  and  conspicuous  in  position,  might  be 
found  to  have  a  material  effect  in  diminishing  the  mischief  caused  by 
the  libel,  and  thus  substantially  reduce  the  damages  sustained  by  the 
person  libelled.  The  retraction  was  properly  admitted  in  e\'idence 
quite  apart  from  the  statute."  The  case  of  Turner  v.  Hearst  (115  Cal. 
394,  402)  seems  to  hold  that  evidence  of  a  proper  retraction  may  be 
given  both  for  the  purpose  of  rebutting  the  inference  of  malice  and  also 
as  evidence  tending  to  prove  a  decrease  of  the  actual  damages  which 
without  it  plaintiff  would  have  sustained. 

While  we  are  not  accepting  these  decisions  as  establishing  the  rule 
in  this  state  that  evidence  of  a  retraction  may  be  given  for  the  purpose 
of  reducing  compensatory  damages  —  that  question  not  being  now 
l)efore  us  —  they  do  tend  to  support  the  proposition  that  publication 
of  denials  of  the  truthfulness  of  a  libelous  article  under  proper  circmn- 
stances  might  be  found  by  a  jury  to  be  a  step  or  effort  which  was 
reasonably  calculated  to  minimize  the  damages  otherwise  to  be  antici- 
pated from  such  article.  Denials  by  the  libeled  person  might  not  have 
the  same  force  as  an  admission  of  falsehood  or  mistake  by  the  libeler 


SECT.    IV.]  HOPPLE   V.   HIGBEE.  807 

himself,  but  we  do  not  think  it  ought  to  be  said  as  a  matter  of  law  that 
ones  hke  those  here  alleged  were  not  reasonably  calculated  to  have 
•some  effect  in  the  same  direction.  ' 

For  these  reasons  we  think  that  the  orders  appealed  from  should 
be  reversed,  with  costs  in  all  courts,  and  that  defendants'  motion  should 
be  denied,  with  ten  dollars  costs,  and  the  question  certified  answered 
•  in  the  negative. 

Chase,  Hogan,  Cakdozo,  Pound,  McLaughlin  and  Andrews,  JJ. 
concur. 

Orders  reversed,  etc. 


HOPPLE  V.  HIGBEE. 
Supreme  Court  of  New  Jersey,  1852. 

[Reported  3  Zab.  342.] 

Green,  C.  J.  In  the  action  of  trespass  de  bonis  asportatis  damages 
are  allowed  upon  two  grounds,  viz.:  1.  By  way  of  compensation  for 
the  loss  of  the  goods.  2.  As  vindictive  or  exemplary  damages  for  a 
wanton  or  malicious  injury  to  the  rights  or  feelings  of  the  plaintiff,  as 
a  public  example  to  prevent  a  repetition  of  the  act.  Where  the  tres- 
pass is  accompanied  by  no  circumstances  of  aggravation,  the  value  of 
the  property  to  the  plaintiff  at  the  time  of  the  injury,  with  interest, 
furnishes  ordinarily  the  measure  of  damages.  Pacific  Ins.  Co.  v. 
Conrad,  Bald.  138;  Sedgwick  on  Damages,  549. 

Where  there  are  no  circumstances  of  aggravation  where  vindictive 
or  exemplary  damages  are  not  claimed,  the  measure  of  damages  is 
compensation  to  the  plaintiff  for  his  loss.  And  hence,  when  the  goods 
taken  by  the  trespasser  are  restored  to  the  plaintiff  and  accepted  by 
him,  that  fact  may  be  shown  in  mitigation  of  damages.  It  will  not, 
indeed,  justify  the  tort  nor  absolve  the  tort-feasor  from  the  legal  con- 
sequences of  his  wrongful  act;  but  it  will  show  that  the  plaintiff  has 
sustained  less  injury,  and  is  consequently  entitled  to  less  damages  by 
way  of  compensation  than  he  otherwise  would  have  been.  2  Rolle's 
Ab.  569,  pi.  3;  Com.  Dig.  "Trespass"  B  4;  Bac.  Ab.  "Trespass"  E  2. 

So  if  the  property,  while  in  the  hands  of  the  trespasser,  be  attached 
or  taken  in  execution  upon  process  issued  at  the  suit  of  a  third  party 
against  the  owner  of  the  goods,  and  they  be  thus  applied  by  sanction 
of  law  in  satisfaction  of  the  owner's  debt,  or  otherwise  for  his  benefit, 
that  fact,  the  cases  agree,  may  be  shown  in  mitigation  of  damages. 
Higgins  V.  Whitney,  24  Wend.  379;  Squire  v.  Hollenbeck,  9  Pick.  551; 
Sherry  v.  Schuyler,  2  Hill,  204;  Irish  v.  Cloyes,  8  Vt.  30. 

But  it  is  said,  that  although  if  taken  out  of  the  hands  of  the  wrong- 
doer by  legal  process  at  the  instance  of  a  third  part}',  that  fact  may  be 


808  HOPPLE   V.    HIGBEE.  [CIL\P.    VI. 

shoviTi  in  mitigation  of  damages;  the  rule  does  not  apply  wliere  the 
process  is  sued  out  by  the  trespasser  himseh',  because  the  trespasser 
cannot  mitigate  damages  by  showing  that  he  had  himself  applied  the* 
property  to  the  owner's  use  without  his  consent.  Hanmer  i\  Wilsey, 
17  Wend.  91 ;  Otis  v.  Jones,  21  Wend.  394;  Higgins  v.  Whitney,  24  Wend. 
379. 

So  far  as  the  question  of  compensation  to  the  plaintiff  is  concerned,  ■ 
it  is  ob^•iously  immaterial  whether  the  goods  are  taken  from  the  wrong- 
doer by  process,  sued  out  by  the  A\Tongdoer  himself  or  by  a  third  party. 
In  either  event  they  are  applied  to  the  plaintiff's  use,  and  his  loss,  by 
reason  of  the  trespass,  is  diminished  as  much  in  the  one  case  as  in  the 
other.  Upon  the  mere  question  of  compensation,  the  distinction  sought 
to  be  established  is  without  foundation.  If  the  distinction  exist,  it 
must  rest  upon  principles  of  policy  or  upon  some  ground  distinct  from 
the  mere  right  of  the  plaintiff  to  compensation  for  his  loss. 

And  it  was  accordingly  held  by  the  Supreme  Court  of  New  York 
that  the  evidence  was" inadmissible,  because  the  trespasser  cannot  by 
any  act  of  his  own,  without  the  plaintiff's  consent,  relieve  himself  from 
the  consequence  of  his  tort,  or  deprive  the  plaintiff  of  redress  for  the 
injury  inflicted.  It  is  true  that  the  trespasser  cannot  by  his  own  mere 
act  either  restore  the  property  to  the  plaintiff,  or  apply  it  to  his  use, 
without  his  consent.  Xor  can  the  trespasser  appropriate  the  property 
AATongfuUy  seized  either  to  pay  a  debt  due  to  himself  or  to  any  other 
creditor,  except  by  consent  of  the  debtor  or  by  sanction  of  law.  But 
where  the  goods  are  seized  in  the  hands  of  the  trespasser  by  legal 
process,  and  applied  to  the  paAanent  of  the  debts  of  the  OTATier,  they 
are  not  so  applied  by  the  act  of  the  tort-feasor,  but  by  act  and  opera- 
tion of  law.  And,  upon  principle,  it  is  perfectly  immaterial  whether 
the  machinery  of  law  be  set  in  operation  ])y  a  third  party  or  by  the 
tort-feasor  himself.  In  either  event  the  property  of  the  plaintiff,  un- 
lawfully taken  from  his  possession,  is  by  sanction  of  law  taken  from 
the  trespasser,  and  applied  to  the  use  of  the  o^^Tier.  As  a  matter  of 
right  and  justice,  therefore,  he  is  entitled  to  so  much  less  damages  as 
a  compensation  for  liis  injury. 

It  is  clear,  moreover,  that  the  oA\Tiership  of  the  goods  is  unchanged 
by  the  tort.  They  remain  in  the  hands  of  the  trespasser  liable  to  be 
seized  by  legal  process  against  the  o^^'ner,  and  thus  appropriated  to  his 
use.  Any  creditor  may  thus  sue  out  process,  seize  and  appropriate 
them.  It  cannot  be  contended  that  the  trespasser  has  forfeited  his 
rights  as  a  creditor,  or  that  he  has  not  the  same  right  to  sue  and  attach 
the  goods  as  any  other  creditor  has.  And  if  the  goods  may  thus  be 
legally  taken  from  tlie  defendant's  possession,  and  applied  to  the  plain- 
tiff's use,  it  is  difficult  to  concei\e  of  any  rule  of  law  or  principle  of 
justice  which  would  compel  the  trespasser  to  respond  for  the  value  of 
the  goods,  or  permit  the  plaintiff'  to  recover  their  full  value,  by  way  of 
compensation. 


SECT.    IV.]  HOPPLE   V.    HIGBEE.  809 

In  the  case  now  under  consideration,  the  goods  were  originally 
seized  by  virtue  of  an  attachment  issued  by  a  justice  for  an  amount 
beyond  his  jurisdiction.  The  process  was  consequently  void,  and  the 
plaintiff  in  the  attachment  and  the  officer  who  served  the  process  be- 
came liable  as  trespassers.  It  cannot  be  denied  that  the  plaintiff  had 
a  right  to  sue  out  a  second  and  valid  attachment,  and  that  it  was  not 
only  the  right,  but  the  duty  of  the  officer  to  attach  the  same  goods  to 
answer  the  claim  of  the  plaintiff.  And  if,  by  operation  and  judgment 
of  law,  the  goods  were  applied  to  the  plaintiff's  use,  his  damages  re- 
sulting from  the  unlawful  act  were  pro  tanto  diminished,  and  it  would 
seem  to  be  perfectly  immaterial,  so  far  as  the  question  of  damages 
resulting  from  the  trespass  is  concerned,  whether  the  attachment  was 
sued  out  by  A.  or  by  B.,  or  whether  the  property  was  applied  to  pay  a 
debt  of  the  plaintiif  or  of  any  of  the  creditors  who  came  in  under  the 
attachment. 

The  force  of  the  objection  consists  in  the  position,  that  the  act  of 
the  wrongdoer,  after  the  trespass  has  been  committed,  and  the  right 
of  the  plaintiff  to  redress  is  consummate,  cannot  divest  the  plaintiff 
of  any  part  of  his  remedy.  It  is  not  contended  that  it  can  purge  the 
tort,  but  merely  that  it  may  qualify  the  injury  which  the  plaintiff  has 
received. 

There  are  numerous  authorities  which,  by  analogy,  sustain  the 
position. 

Thus,  in  an  action  by  an  executor  against  an  executor  dc  son  tori, 
the  defendant  may  show  in  mitigation  of  damages  the  due  payment  of 
the  debts  of  the  decedent.  Whitehall  v.  Squire,  Carth.  104;  2  Saund. 
P.  and  E.  888;  Buller's  N.  P.  48. 

He  cannot  plead  in  justification  payment  of  the  debts  to  the  value 
of  the  goods;  but,  upon  the  general  issue,  those  payments  shall  be  rec- 
ognized in  damages.     2  Phil.  Ev.  125. 

In  Prescott  «.  Wright,  6  Mass.  20,  which  was  an  action  of  trover  by 
a  defendant  in  execution  against  a  constable  who  levied  the  execution 
after  it  was  returnable,  the  court  held  that  the  levy  was  without  legal 
authority  and  a  conversion.  "But,"  say  the  court,  "as  the  defendant 
paid  a  debt  due  from  the  plaintiff  out  of  the  proceeds,  this  fact  may 
mitigate  the  damages."  The  same  principle  was  adopted  in  Caldwell 
V.  Eaton,  5  Mass.  404. 

In  Pierce  v.  Benjamin,  14  Pick.  356,  the  plaintiff  sued  in  trover  for 
goods  taken  and  sold  by  a  tax  collector  under  a  tax  warrant.  The 
goods  were  sold  in  \iolation  of  law,  and  the  proceeds  applied  in  part 
payment  of  the  plaintiff's  tax.  It  was  held  that  the  defendant,  by 
virtue  of  his  unlawful  proceedings,  became  liable  as  a  trespasser  ah 
initio,  but  that  the  amount  of  the  proceeds  of  the  sale  applied  toward 
the  payment  of  the  plaintiff's  tax  must  be  deducted  from  the  value  of 
the  goods  in  ascertaining  the  amount  of  (himages. 

The  court  say,  "The  general  rule  of  damages  in  actions  of  trover  is 


810  HOPPLE   V.    HIGBEE.  [ciL\P.    VI. 

unquestionably  the  value  of  the  property  taken  at  the  time  of  its 
conversion.  But  there  are  exceptions  and  qualifications  of  this  rule, 
as  plain  and  well  established  as  the  rule  itself.  Whenever  the  prop- 
ert}-  is  returned,  and  received  by  the  plaintiff,  the  rule  does  not  apply; 
and  when  the  property  itself  has  been  sold,  and  the  proceeds  applied 
to  the  payment  of  the  plaintiff's  debt,  or  otherwise  to  his  use,  the 
reason  of  the  rule  ceases,  and  justice  forbids  its  application.  In  all 
such  cases  the  facts  may  be  shown  in  mitigation  of  damages."  Accord 
Blake  v.  Johnson,  1  N.  H.  91. 

Judge  Greenleaf,  one  of  the  most  accurate  of  elementary  TVTiters, 
lays '  down  the  rule  with  equal  clearness :  "  If  the  property,  in  whole 
or  in  part,  has  been  applied  to  the  pa^onent  of  the  plaintiff's  debt,  or 
otherwise  to  his  use,  this  may  be  considered  by  the  jury  as  diminish- 
ing the  injury,  and  consequently  the  damages."    2  Greenl.  Ev.  §  276. 

The  rule,  it  may  be  admitted,  is  too  broadly  stated.  The  unau- 
thorized appropriation  by  a  trespasser  of  the  goods  wrongfully  taken 
to  pay  the  owner's  debts,  it  may  be,  would  be  inadmissible  in  evidence 
in  mitigation  of  damages.  But  if  the  goods  wrongfully  taken  be  thus 
appropriated,  either  by  the  consent  of  the  owTier  or  by  sanction  and 
operation  of  law,  there  would  seem  to  be  no  just  ground  for  question- 
ing the  soundness  of  the  principle.  In  Lamb  v.  Day  and  Peck,  8  Vt. 
407,  the  plaintiff  brought  an  action  of  trespass  against  the  attaching 
officer  and  the  plaintiff  in  attachment  for  unlawfully  using  a  horse, 
the  property  attached.  The  plaintiff  in  attachment  subsequently  re- 
covered judgment,  and  the  horse  was  sold,  by  virtue  of  an  execution, 
in  satisfaction  of  the  judgment.  The  defendants  were  held  trespassers 
ab  initio  by  reason  of  the  unlawful  use  of  the  horse.  But  the  court 
said,  "placing  the  liability  of  the  defendants  on  the  footing  of  the 
original  taking  as  an  act  of  trespass,  still  the  ultimate  disposition  of 
the  horse  is  material  to  the  question  of  damages;  and  as  the  prop- 
erty was  applied  in  satisfaction  of  the  plaintiff's  debt,  that  circiunstance 
serves  to  reduce  the  damages  accordingly." 

In  Stewart  v.  Martin,  16  Vt.  397,  the  constable,  ha\'ing  seized  prop- 
erty by  virtue  of  mesne  process  of  attachment  out  of  his  jurisdiction, 
was  sued  in  trespass  for  such  taking.  It  was  held  that  the  defendant 
might  show,  in  mitigation  of  damages,  that,  having  taken  the  property 
to  a  place  within  his  jurisdiction,  he  attached  it  there,  on  the  same 
process  as  the  property  of  the  same  debtor,  after  the  action  of  trespass 
had  been  commenced  against  him.  The  same  rule  was  adopted  in 
Board  v.  Head,  3  Dana's  Rep.  489,  494. 

So  in  Briggins  v.  Grove,  Cromp.  &  J.  36,  it  was  held  that  where  a 
distress  was  taken  and  sold  unlawfully  without  previous  appraisement, 
the  party  distrained  on  can  only  recover  the  value  of  the  goods  dis- 
trained less  the  amount  of  rent  due,  though  he  may  recover  special 
damages  for  the  illegal  sale. 

It  is  true  it  was  held  in  Sowell  v.  Champion,  6  Ad.  &  El.  407,  that 


SECT.    IV.]  TORRY  V.   BL.\CK.  811 

where  goods  are  seized  under  process  upon  a  regular  judgment  in  a 
place  to  which  the  process  did  not  run,  the  plaintiff  might  recover  the 
whole  value  of  the  goods,  and  not  the  mere  damages  sustained  by  their 
being  taken  in  a  wrong  place.  In  delivering  the  opinion,  Denman,  C.  J., 
says,  "parties  are  not  to  extort  what  is  justly  due  by  the  improper 
execution  of  a  warrant."  That  may  well  be.  But  it  must  be  borne 
in  mind  that  exemplary  or  vindictive  damages  may  in  all  proper  cases 
be  given  for  a  trespass  committed  under  color  of  legal  process.  And 
whenever  a  plaintiff,  or  the  officer  serving  process,  shall  wantonly  or 
injuriously  attach  or  take  in  execution  the  property  of  the  defendant 
without  lawful  authority,  a  jury  may  repress  the  evil  and  redress  the 
injury  by  awarding  exemplary  damages.  But  it  is  not  perceived  that 
a  regard  either  for  public  justice  or  the  rights  of  individuals  can  re- 
quire that  a  plaintiff  who  sues  out  process  in  good  faith  which  proves 
to  be  void,  or  the  officer  who  executes  such  process,  shall  be  thereby 
estopped  from  suing  out  or  executing  valid  process  upon  the  property 
thus  -WTongfully  taken,  or  that  the  party  injured  shall  be  thereby  en- 
titled to  recover  the  full  value  of  the  property  in  damages,  although 
they  were  lawfully  appropriated  in  satisfaction  of  his  own  debt. 

If  the  e\ndence  be  competent  by  way  of  mitigating  damages,  it  is 
clearly  admissible  under  the  general  issue.  It  could  not  be  specially 
pleaded.  Pleas  in  bar  are  in  discharge  of  the  action,  and  every  plea 
must  be  pleaded  to  the  action.  A  plea  to  the  damages  merely  is  vicious. 
Matters  in  mitigation,  therefore,  cannot  be  pleaded,  and  can  only  be 
given  in  evidence  under  the  general  issue.  2  Greenl.  §  625;  1  Chit.  PI. 
(7th  ed.)  539,  541;  Demick  v.  Chapman,  11  Joluis.  132. 

The  judgment  must  be  reversed,  and  a  venire  de  novo  awarded. 


TORRY  V.   BLACK. 
Court  of  Appeals,  New  York,  1874. 

[Reported  58  A'.  F.  185.] 

This  was  an  action  for  trespass  for  cutting  and  carrying  away  wood 
and  timber  from  plaintiff's  lands. 

In  1851  the  father  of  the  plaintiff  died  intestate,  leaving  a  large  real 
estate.  He  left  surviving  him  a  widow  and  the  plaintiff,  who  was  his 
only  heir,  then  about  one  year  old.  The  defendant  was  the  grand- 
father of  the  plaintiff,  and  he  took  out  letters  of  administration  on  the 
estate  of  plaintiff's  father.  The  grandfather,  after  taking  out  letters 
of  administration,  and  between  the  years  1851  and  1866,  cut  and  car- 
ried away  a  large  quantity  of  timber  growing  on  the  land  that  de- 
scended to  the  plaintiff.  The  plaintiff,  on  attaining  his  majority, 
brought  this  action  to  recover  damages  for  such  unlawful  cutting  and 
carrying  away. 


812  TORRY  l\   BLACK.  |CHAP.    VI. 

The  defence  set  up  in  the  answer  is,  that  the  timber  was  cut  with  the 
consent  and  approval  of  plaintiff's  mother,  who  was  his  guardian  and 
entitled  to  dower  in  said  premises,  and  that  he  afterward  settled  with 
ner  for  the  said  timber  and  was  released  by  her  from  all  claims  therefor. 

Grover,  J.  .  .  .  We  have  seen  that  the  defendant  was  liable  as  a 
trespasser  for  cutting  the  timber.  A  trespasser  cannot  mitigate  the 
damages  by  an  offer  to  return  the  property  to  its  owTier;  but  if  the 
owner  accept  the  property,  or  othei-\\'ise  regain  possession  of  it,  it 
may  be  proved  for  that  purpose,  as  in  that  case  he  is  not  deprived  of 
his  property.  The  inquiry  is,  what  is  the  amount  of  damage  sustained 
by  the  plaintiiT  from  the  wrongful  act  of  the  defendant.  But  to  war- 
rant this  evidence  the  property  must  be  received  by  the  plaintiff  or 
applied  to  his  use  with  his  assent.  The  law  will  not  permit  a  wrong- 
doer to  take  the  property  of  another  and  apply  the  same  to  his  use 
without  his  assent;  and,  if  so  applied,  the  damages  recoverable  for  the 
injury  will  not  be  thereby  affected.  When  the  owTier  voluntarily  re- 
ceives the  proceeds  of  the  property  wrongfully  taken,  or  directs  or 
assents  to  their  application  to  his  use,  such  facts  may  be  shown  in 
mitigation,  the  same  as  the  receipt  or  application  of  the  identical 
property  taken  by  the  trespasser.  The  fact  that  the  defendant  was 
administrator  of  the  estate  of  the  plaintiff's  father  is  wholly  immaterial 
in  this  action,  as  he  had  nothing  in  that  character  to  do  ^\^th  his  real' 
estate,  unless  it  became  necessary  to  sell  or  mortgage  it  for  the  pay- 
ment of  the  debts  of  the  intestate. 

The  further  facts,  that  the  defendant  was  the  father  of  the  plaintiff's 
mother  and  that  she  was  at  the  time  of  the  death  of  his  father  under 
twenty-one  years  of  age,  can  have  no  effect  upon  the  legal  rights  of  the 
parties.  We  have  seen  that,  had  the  plaintiff  been  capable  of  contract- 
ing for  himself  and  had  received  from  the  defendant  the  proceeds  of 
the  timber,  or  the  same  had  been,  with  his  assent,  applied  to  his  use, 
these  facts  might  have  been  sho^\^l  in  mitigation  of  damages.  But  the 
plaintiff  was  not  so  capable.  His  mother  was,  before  her  appointment 
as  his  guardian  by  the  surrogate,  guardian  for  him,  by  statute,  with 
the  powers  of  a  guardian  in  socage  (1  R.  S.,  718,  §  5);  as  such  she  was 
authorized  to  recover  damages  for,  or  reclaim  and  dispose  of  timber 
wrongfully  cut  upon  his  land.  She  had  the  right  to  recei^•e  for  his 
benefit  the  proceeds  of  any  timber  so  cut.  It  would  follow  that  if  she 
so  received  such  proceeds,  or  directed  or  assented  to  the  application 
thereof  to  his  benefit  or  that  of  his  estate,  the  facts  may  be  proved  in 
mitigation  of  damages.  The  assent  of  the  guardian,  under  the  cir- 
cumstances, has  the  same  effect  as  that  of  the  plaintiff  would  have 
had  had  he  been  sui  juris. 

The  judgment  appealed  from  must  be  reversed  and  a  new  trial  or- 
dered, costs  to  abide  event. 

All  concur. 

Judgment  reversed. 
V 


SECT.    IV.]  BURTRAW   V.   CLARK.  813 


BURTRAW  V.  CLARK. 

Supreme  Court  of  Michigan,  1894. 

[Reported  103  Mich.  383.] 

Hooker,  J.  Defendants  dug  a  drain  across  the  premises  of  the 
plaintiff,  under  drain  proceedings  that  were  void.  It  was  admitted  to 
be  a  trespass.  Upon  the  trial  the  defendants  claimed  the  right  to  show- 
that  such  ditch  was  a  benefit,  and  not  an  injury,  to  plaintiff's  land,  and 
that  the  damages  should  be  nominal.  The  court  refused  to  permit  this, 
and  confined  the  e^adence  of  damages  to  the  amount  that  would  be 
required  to  place  the  land  in  its  former  condition,  by  filling  the  ditch, 
etc.,  which  he  held  that  plaintiff  had  the  right  to  recover. 

The  law  aims  to  compensate  parties  for  injuries,  and  ordinarily 
the  rule  that  makes  the  injured  party  whole  is  a  safe  rule  to  adopt;  but 
it  is  not  invariably  so,  for  such  person  owes  some  duty  to  a  trespasser. 
In  the  majority  of  cases  little  difficulty  is  experienced,  because  the 
trespass  is  clearly  injurious,  and  the  cost  of  repair,  where  feasible, 
and  the  shrinkage  in  value,  where  it  is  not,  furnish  fair  measures  of 
damage.  In  a  case  where  rebuilding  is  a  physical  impossibility  there  is 
no  alternative  but  to  apply  the  latter  rule;  and,  on  the  other  hand,  where 
it  is  possible,  there  is  perhaps  no  good  reason  why  a  plaintiff'  should  not 
recover  the  reasonable  cost  thereof  incurred  in  good  faith,  and  under 
the  rules  laid  dowTi  in  Allison  r.  Chandler,  11  Mich.  542,  perhaps  the 
court  should  not  be  too  reluctant  to  apply  this  rule,  though  it  should 
bear  heavily  upon  the  defendant.  But  there  are  limits  to  its  application. 
While  it  would  be  plainly  absurd  to  deny  to  a  plaintiff,  by  way  of 
damage  for  the  destruction  of  a  few  rods  of  fence,  the  expense  actually 
incurred,  or  perhaps  the  prospective  cost  of  rebuilding  the  same,  upon 
the  ground  that  his  measure  of  damages  should  be  the  shrinkage  in 
value  of  a  thousand  acres  of  land  owing  to  sudi  destruction,  it  would 
be  as  unjust  to  say  that  he  should  be  allowed  to  reco\er  the  amount 
necessary  to  replace  his  farm,  which  had  sunk  into  defendant's  mine, 
where  the  filling  of  the  hole  caused  thereby,  though  a  physical  possi- 
bility, would  necessarily  be  attended  by  an  expenditure  of  an  amount 
many  times  the  value  of  the  farm  in  its  former  condition.  In  such 
case  the  value  of  the  premises  woidd  be  the  measure  of  the  damages. 
Another  illustration  of  a  case  where  this  rule  must  apply  is  where  an 
injury  to  the  foundation  of  a  building  is  caused  by  a  trespass,  to  put 
which  back  in  its  former  condition  might  require  the  tearing  down 
and  rebuilding  of  a  valuable  edifice.  It  would  be  inijust  to  require  this, 
where  the  injury  was  not  such  as  to  endanger  the  building,  and  where 
it  was  trifling  in  comparison  to  the  cost  of  remedying  the  defect.  Still 
more  palpable  would  be  the  injustice  of  allowing  a  plaintiff  to  recover 


814       BRITISH  ELEC,  ETC.  CO.  V.  UNDERG'd  ELEC.  RY.  CO.      [CHAP.    VI. 

from  a  defendant  the  amount  necessary  to  remove  a  valuable  building, 
erected  by  him  upon  plaintiff's  land,  thereby  greatly  enhancing  its 
^•alue,  which  had  thereby  become  the  property  of  the  plaintiff,  and  which 
he  might  thereafter  remove  or  not  at  his  own  will.  Undoubtedly, 
within  certain  bounds,  a  plaintiff  might  remove  such  a  structure,  and 
collect  the  cost  thereof,  as  damages,  if  he  saw  fit  to  do  so  before  action 
brought,  because  the  law  recognizes  his  right  to  use  his  land  as  he  may 
choose.  Without  undertaking  to  determine  where  limitations  upon 
such  right  begin,  we  are  impressed  with  the  injustice  of  allowing  a 
plaintiff"  in  a  trespass  case  to  recover  the  prospective  cost  of  removing  a 
structure  or  other  improvement,  and  to  afterwards  avail  himself  of  the 
benefit  of  his  property  by  retaining  it. 

Reasons  are  urged  in  this  case  for  the  claim  that  the  plaintiff  should 
not  be  required  to  keep  this  drain.  It  is  said  that  it  would  soon  ripen 
into  a  prescriptive  right,  whereby  others  might  require  her  to  take  care 
of  water  flowing  from  the  lands  of  adjoining  proprietors.  However 
that  may  be,  at  the  time  she  launched  her  action  she  was  taking  no 
step  to  incur  the  expense  that  she  insists  should  be  her  measure  of 
damage.  So  far  as  the  evidence  goes,  there  is  nothing  to  show  that  she 
will  not  keep  the  drain,  or  that  she  wull  ever  suffer  the  damage,  i.  e., 
expend  the  money  in  refilling  the  ditch,  which  she  has  sought  to  recover. 
The  defendants  claim  this  to  have  been  an  improvement,  whereby  the 
value  of  the  premises  was  increased,  which  they  should  have  been  al- 
lowed to  show,  and,  if  the  jury  should  have  so  found  the  facts,  the  rule 
contended  for  by  the  defendants  would  be  the  proper  measure  of 
damages.  On  the  contrary,  if  they  found  otherwise,  and  that  the 
plaintiff  intended  to  refill  the  ditch,  it  would  not  be  unreasonable  to 
allow  the  cost  of  doing  so  as  an  element  of  damage;  it  being  apparent 
that  such  cost  would  not  exceed  the  value  of  the  premises.  The  de- 
fendants should  have  been  permitted  to  introduce  the  evidence  offered, 
and  the  case  should  have  been  submitted  to  the  jury  as  indicated. 

The  judgment  Avail  be  reversed,  and  a  new  trial  ordered. 


BRITISH  WESTINGHOUSE  ELECTRIC  &  MANUFACTURING 
CO.   V.   UNDERGROUND  ELECTRIC   RAILWAYS  CO. 

House  of  Lords,  1912. 

[Reported  [1912]  yl.  C.  673.] 

Appeal  from  an  order  of  the  Court  of  Appeal  affirming  an  order  of 
the  King's  Bench  Division. 

By  a  contract  under  seal  dated  ]March  12,  1902,  and  made  between 
the  Metropolitan  District  Electric  Traction  Company,  Limited,  of 
the  one  part  and  the  appellants  of  the  other  part,  the  appellants  agreed 


SECT.  IV.]       BRITISH  ELEC,  ETC.  CO.  V.  UNDERGD  ELEC.  RY.  CO.         815 

to  provide,  deliver,  and  erect  in  accordance  with  the  specification 
annexed  to  the  contract  eight  steam  turbines  and  eight  turbo  alterna- 
tors combined  at  the  price  of  £250,000  payable  in  instalments  as  therein 
provided.  By  a  subsequent  agreement  another  specification  was  sub- 
stituted for  the  specification  originally  annexed  to  the  contract.  As 
from  April  25,  1902,  the  respondents  became  entitled  to  the  benefit 
and  subject  to  the  liabilities  of  the  contract,  and  the  appellants  ac- 
cepted the  respondents  in  substitution  for.  the  Metropolitan  District 
Electric  Traction  Company. 

Clause  20  of  the  contract  provided  that  every  difference  or  dispute 
as  to  the  meaning  or  effect  of  the  contract  and  specification  or  in  any 
way  arising  out  of  the  same  should  be  referred  to  arbitration  under  the 
provisions  of  the  Arbitration  Act,  1889. 

At  various  dates  during  the  years  1904,  1905,  and  1906  the  appellants 
provided,  delivered,  and  erected  the  eight  machines  mentioned  in  the 
contract.  These  machines  were  defective  in  design  and  efficiency,  and, 
in  particular,  they  failed  to  satisfy  the  pro^^sions  of  the  contract  wath 
respect  to  economy,  and  their  steam  consumption  was  extravagant 
and  materially  exceeded  that  which  the  appellants  guaranteed  by  the 
contract.  The  respondents  nevertheless  accepted  the  machines  and 
used  them  for  the  purposes  of  their  railway,  reserving  always  their  right 
to  damages  in  respect  of  the  said  breaches  on  the  part  of  the  appellants 
of  the  terms  of  the  contract.  In  the  year  1907  the  appellants,  with  the 
respondents'  consent,  removed  one  of  the  machines  from  the  respond- 
ents' premises  and  endeavoured  by  making  alterations  and  improve- 
ments therein  to  bring  it  into  conformity  with  the  terms  of  the  contract 
and  if  their  endeavours  had  proved  successful  they  intended  to  effect 
similar  alterations  and  improvements  in  the  other  seven  machines. 
The  respondents,  always  reserving  their  rights  as  aforesaid,  acquiesced 
in  the  appellants  making  experiments  on  the  said  machine.  After  ex- 
periments extending  over  many  months  the  appellants  failed  to  bring 
the  machine  into  conformity  with  the  contract.  The  respondents 
thereupon  determined  to  replace  the  machines  provided  by  the  appel- 
lants by  otliers,  and  they  purchased  machines  of  a  different  design  and 
manufacture,  hereinafter  called  Parsons  machines,  and  substituted 
them  for  the  machines  provided  by  the  appellants.  The  Parsons 
machines  had  a  greater  capacity  and  a  much  smaller  steam  consump- 
tion than  the  appellants'  machines,  even  supposing  that  the  latter  had 
been  in  conformity  with  the  contract.  Disputes  having  arisen  under 
the  contract  of  March  12,  1902,  these  disputes  were  by  an  agreement 
dated  November  21,  1908,  referred  to  the  final  determination  of  a  sole 
arbitrator.  .  .  . 

The  arbitrator  found  as  a  fact  that  the  purchase  of  the  Parsons 
machines  was  to  the  pecuniary  advantage  of  the  respondents,  and  that 
the  superiority  of  the  Parsons  machines  in  efficiency  and  economy  over 
those  supplied  by  the  appellants  was  so  great  that  even  if  the  appellants 


81 G       BRITISH  ELEC,  ETC.  CO.  V.  UNDERG'd  ELEC.  RY.  CO.      [cHAP.    VI. 

had  delivered  to  the  respondents  machines  in  all  respects  complying 
with  the  conditions  of  the  contract  it  would  yet  have  been  to  the  pecu- 
niary advantage  of  the  respondents  at  their  own  cost  to  have  replaced 
the  machines  supplied  by  the  appellants  by  Parsons  machines  so  soon 
as  the  latter  were  to  be  obtained.  .  .  . 

The  questions  of  law  submitted  for  the  opinion  of  the  Court  were: 

1.  Whether  the  contention  of  the  appellants  above  set  forth  in 
paragraph  17  of  the  case  was  well  founded. 

2.  If  not,  whether  the  respondents  were  right  in  their  contention  that 
the  cost  to  them  of  the  purchase  and  installation  of  the  Parsons  ma- 
chines was  recoverable  by  them  from  the  appellants  as  part  of  the 
respondents'  damages. 

The  questions  raised  by  the  special  case  were  argued  before  a  Divi- 
sional Court  consisting  of  the  Lord  Chief  Justice  and  Hamilton  and 
Avory,  JJ.  The  Court  adjudged  that  the  contention  of  the  appellants 
was  not  well  founded  and  that  the  contention  of  the  respondents  on  the 
facts  as  stated  was  correct.  The  arbitrator  made  his  aw'ard  whereby, 
after  stating  that  he  had  adopted  and  acted  upon  the  answers  given  by 
the  Court  to  the  questions  submitted  in  the  special  case,  he  awarded 
that  the  appellants  were  not  entitled  to  recover  anything  from  the 
respondents  in  respect  of  their  claim,  and  that  the  respondents  were 
entitled  to  recover  the  sum  of  £15,394  in  respect  of  their  counter-claim. 
A  copy  of  the  special  case  and  the  answers  of  the  Court  was  annexed  to 
the  award  and  made  to  form  part  thereof.  The  appellants  then  applied 
to  a  Divisional  Court  consisting  of  Pickford  and  Lush,  JJ.,  to  set  aside 
the  award  or  remit  it  back  to  the  arbitrator  for  reconsideration  upon 
the  ground  that  the  answers  given  by  the  Divisional  Court  to  the 
questions  submitted  by  the  special  case  were  wrong  in  law  and  consti- 
tuted a  misdirection  to  tlie  arbitrator,  and  there  was  therefore  an  error 
of  law  on  the  face  of  the  award.  The  Court,  considering  itself  bound 
by  the  opinions  given  by  the  Divisional  Court,  dismissed  the  appli- 
cation without  argument.  The  appellants  appealed  to  the  Court  of 
Appeal  (Vaughan  Williams,  Buckley,  and  Kennedy,  L.JJ.).  The  Court 
held,  first  (Vaughan  Williams,  L.  J.,  dissenting)  that  it  was  competent 
for  them  to  entertain  the  appeal,  and,  secondly,  (Buckley,  L.  J.,  dissent- 
ing) that  the  appeal  failed  on  the  merits.  Buckley,  L.  J.,  differed  upon 
the  construction  of  the  special  case.  As  he  read  the  findings  of  the 
arbitrator  they  amounted  to  a  statement  that  the  reasonableness  and 
prudence  of  the  course  taken  by  the  respondents  were  attributable  not 
only  to  the  position  in  which  they  found  themsehes  by  the  breach  of 
contract,  but  also  to  a  regard  for  their  own  pecuniary  advantage,  and 
he  thought  that  the  appellants  were  entitled  to  a  decision  of  the  arbitra- 
tor upon  the  first  point  apart  from  the  second;  but  except  upon  the 
question  of  construction  he  did  not  differ  from  the  conclusions  of  the 
other  members  of  the  Court. 

Viscount  Haldane,  L.  C.  .  .  .  The  arbitrator  appears  to  me  to  have 


SECT.  IV.]       BRITISH  ELEC,  ETC.  CO.  V.  UNDERG'd  ELEC.  RY.  CO.        817 

found  clearly  that  the  effect  of  the  superiority  of  the  Parsons  machines 
and  of  their  efficiency  in  reducing  working  expenses  was  in  point  of 
fact  such  that  all  loss  was  extinguished,  and  that  actually  the  respond- 
ents made  a  profit  by  the  course  they  took.  They  were  doubtless  not 
bound  to  purchase  machines  of  a  greater  kilowatt  power  than  those 
originally  contracted  for,  but  they  in  fact  took  the  wise  course  in  the 
circumstances  of  doing  so,  with  pecuniary  advantage  to  themselves. 
They  had,  moreover,  used  the  appellants'  machines  for  several  years, 
and  had  recovered  compensation  for  the  loss  incurred  })y  reason  of 
these  machines  not  being  during  these  years  up  to  the  standard  required 
by  the  contract.  After  that  period  the  arbitrator  found  that  it  was 
reasonable  and  prudent  to  take  the  course  they  actually  did  in  pur- 
chasing the  more  powerful  machines,  and  that  all  the  remaining  loss 
and  damages  was  thereby  wiped  out. 

In  order  to  come  to  a  conclusion  on  the  question  as  to  damages 
thus  raised,  it  is  essential  to  bear  in  mind  certain  propositions  which  I 
think  are  well  established.  In  some  of  the  cases  there  are  expressions  as 
to  the  principles  governing  the  measure  of  general  damages  which  at 
first  sight  seem  difficult  to  harmonize.  The  apparent  discrepancies  are, 
however,  mainly  due  to  the  A-arying  nature  of  the  particular  questions 
submitted  for  decision.  The  quantum  of  damage  is  a  question  of  fact, 
and  the  only  guidance  the  law  can  give  is  to  lay  down  general  principles 
which  afford  at  times  but  scanty  assistance  in  dealing  with  particular 
cases.  The  judges  who  give  guidance  to  juries  in  these  cases  have 
necessarily  to  look  at  their  special  character,  and  to  mould,  for  the 
purposes  of  different  kinds  of  claim,  the  expression  of  the  general  prin- 
ciples which  apply  to  them,  and  this  is  apt  to  give  rise  to  an  appearance 
of  ambiguity. 

Subject  to  these  observations  I  think  that  there  are  certain  broad 
principles  which  are  quite  well  settled.  The  first  is  that,  as  far  as  possi- 
ble, he  who  has  proved  a  breach  of  a  bargain  to  supply  what  he  con- 
tracted to  get  is  to  be  placed,  as  far  as  money  can  do  it,  in  as  good  a 
situation  as  if  the  contract  had  been  performed. 

The  fundamental  basis  is  thus  compensation  for  pecuniary  loss 
naturally  flowing  from  the  breach;  but  this  fii"st  principle  is  (}ualified 
by  a  second,  which  imposes  on  a  plaintiff  the  duty  of  taking  all  reason- 
able steps  to  mitigate  the  loss  consequent  on  the  breach,  and  debars  him 
,  frorii  claiming  any  part  of  the  damage  which  is  due  to  his  neglect  to  take 
such  steps.  In  the  words  of  James,  L.  J.,  in  Dunkirk  Colliery  Co.  v. 
Lever,  "The  person  who  has  broken  the  contract  is  not  to  be  exposed 
to  additional  cost  by  reason  of  the  plaintiff's  not  doing  what  they  ought 
to  have  done  as  reasonable  men,  and  the  plaintift's  not  being  under  any 
obligation  to  do  anything  otherwise  than  in  the  ordinary  course  of 
business." 

As  James,  L.  J.,  indicates,  this  second  principle  does  not  impose  on 
the  plaintiff  an  obligation  to  take  any  step  which  a  reasonable  and 


818      BRITISH  ELEC,  ETC.  CO.  V.  UNDERG'd  ELEC.  RY.  CO.      [CIL\P.    VI. 

prudent  man  would  not  ordinarily  take  in  the  course  of  his  business. 
But  when  in, the  course  of  his  business  he  has  taken  action  arising  out 
of  the  transaction,  which  action  has  diminished  his  loss,  the  effect  in 
actual  diminution  of  the  loss  he  has  suffered  may  be  taken  into  account 
even  though  there  was  no  duty  on  him  to  act. 

Staniforth  v.  Lyall  illustrates  this  rule.  In  that  case  the  defendants 
had  chartered  a  ship  to  New  Zealand,  where  they  were  to  load  her,  or 
by  an  agent  there  to  give  the  plaintiff,  the  owner,  notice  that  they  aban- 
doned the  adventure,  in  which  case  they  were  to  pay  £500.  The 
ship  went  to  New  Zealand,  but  found  neither  agent  nor  cargo  there, 
and  the  captain  chose  to  make  a  circuitous  voyage  home  by  way  of 
Batavia.  This  a  oyage,  after  making  every  allowance  for  increased 
expense  and  loss  of  time,  was  more  profitable  than  the  original  venture 
to  New  Zealand  would  have  been.  The  Court  of  Common  Pleas  de- 
cided that  the  action  was  to  be  viewed  as  one  for  a  breach  of  contract 
to  put  the  cargo  on  board  the  plaintiff's  vessel  for  which  the  plaintiff 
was  entitled  to  recover  all  the  damages  he  had  incurred,  but  that  he 
was  bound  to  bring  into  account,  in  ascertaining  the  damages  arising 
from  the  breach,  the  advantages  which  had  accrued  to  him  because  of 
the  course  which  he  had  chosen  to  adopt. 

I  think  that  this  decision  illustrates  a  principle  which  has  been  recog- 
nized in  other  cases,  that,  provided  the  course  taken  to  protect  himself 
by  the  plaintiff  in  such  an  action  Avas  one  which  a  reasonable  and  pru- 
dent person  might  in  the  ordinary  conduct  of  business  properly  have 
taken,  and  in  fact  did  take  whether  bound  to  or  not,  a  jury  or  an  arbi- 
trator may  properly  look  at  the  whole  of  the  facts  and  ascertain  the 
result  in  estimating  the  quantum  of  damage. 

Recent  illustrations  of  the  way  in  which  this  principle  has  been  ap- 
plied, and  the  facts  have  been  allowed  to  speak  for  themselves,  are  to  be 
found  in  the  decisions  of  the  Judicial  Committee  of  the  Privy  Council 
in  Erie  County  Natural  Gas  and  Fuel  Co.  v.  Carroll  and  Wertheim  i\ 
Chicoutimi  Pulp  Co.  The  subsequent  transaction,  if  to  be  taken  into 
account,  must  be  one  arising  out  of  the  consequences  of  the  breach  and 
in  the  ordinary  course  of  business.  This  distinguishes  such  cases  from  a 
quite  different  class  illustrated  by  Bradburn  v.  Great  Western  Ry.  Co., 
Avhere  it  was  held  that,  in  an  action  for  injuries  caused  by  the  defend- 
ants' negligence,  a  sum  received  by  the  plaintiff*  on  a  policy  for  insurance 
against  accident  could  not  be  taken  into  account  in  reduction  of  dam- 
ages. The  reason  of  the  decision  was  that  it  was  not  the  accident,  but 
a  contract  wholly  independent  of  the  relation  between  the  plaintiff  and 
the  defendant,  which  gave  the  plaintiff  his  advantage.  Again,  it  has 
been  held  that,  in  an  action  for  delay  in  discharging  a  ship  of  the  plain- 
tiffs whereby  they  lost  their  passengers  whom  they  had  contracted  to 
carry,  the  damages  ought  not  to  be  reduced  by  reason  of  the  same  per- 
sons taking  passage  in  another  vessel  belonging  to  the  plaintiffs:  Jebsen 
V.  East  and  West  India  Dock  Co.,  a  case  in  which  what  was  relied  on  as 


SECT.    IV.]       BRITISH  ELEC,  ETC.  CO.  V.  UNDERG'd  ELEC.  RY.  CO.        819 

mitigation  did  not  arise  out  of  the  transactions  the  subject-matter 
of  the  contract. 

The  cases  as  to  the  measure  of  damages  for  breach  of  a  covenant  by  a 
lessee  to  deUver  up  the  demised  premises  in  repair  illustrate  yet  another 
class  of  authorities  in  which  the  qualifying  rule  has  been  excluded. 
In  Joyner  v.  Weeks  the  lessor  had  made  a  lease  to  another  lessee  by  way 
of  anticipation,  to  commence  from  the  expiration  of  the  term  of  this 
lease,  and  the  new  lessee  had  made  no  claim  to  be  reimbursed  the  cost 
which  he  had  incurred  in  repairing  after  the  expiration  of  the  demised 
lease.  Wright,  J.,  held  that  the  true  test  was  the  amount  of  diminution 
in  value  to  the  lessor,  not  exceeding  the  cost  of  doing  the  repairs.  The 
Court  of  Appeal,  including  Lord  Esher  and  Fry,  L.  J.,  took  a  different 
view.  The}''  thought  that  there  had  been  a  constant  practice  of  laying 
do\\Ti  the  measure  of  damages  as  being  the  cost  of  putting  into  repair, 
and  that  in  the  particular  class  of  cases  wnth  which  they  were  dealing  it 
was  a  highly  convenient  rule  which  ought  not  to  be  disturbed.  Any 
other  measure  appeared  to  involve  complicated  inquiries.  Moreover, 
the  arrangement  between  the  lessor  and  the  new  lessee  was  res  inter 
alios  acta  with  which  the  original  lessee  had  nothing  to  do  and  which 
he  was  not  entitled  to  set  up. 

I  think  the  principle  which  applies  here  is  that  which  makes  it  right 
for  the  jury  or  arbitrator  to  look  at  what  actually  happened,  and  to 
balance  loss  and  gain.  The  transaction  was  not  res  inter  alios  acta,  but 
one  in  which  the  person  whose  contract  was  broken  took  a  reasonable 
and  prudent  course  quite  naturally  arising  out  of  the  circumstances  in 
which  he  was  placed  by  the  breach.  Apart  from  the  breach  of  contract, 
the  lapse  of  time  had  rendered  the  appellants'  machines  obsolete,  and 
men  of  business  would  be  doing  the  only  thing  they  could  properly  do  in 
replacing  them  with  new  and  up-to-date  machines. 

The  arbitrator  does  not  in  his  finding  of  fact  lay  any  stress  on  the 
increase  in  kilowatt  power  of  the  new  machines,  and  I  think  that  the 
proper  inference  is  that  such  increase  was  regarded  by  him  as  a  natural 
and  prudent  course  followed  by  those  whose  object  was  to  avoid  further 
loss,  and  that  it  formed  part  of  a  continuous  dealing  with  the  situation 
in  which  they  found  themselves,  and  was  not  an  independent  or  dis- 
connected transaction. 

For  the  reasons  I  have  given  I  think  that  the.  questions  of  law  stated 
by  the  arbitrator  in  the  special  case  have  been  wrongly  answered  by  the 
Courts  below.  The  result  is  that  the  award  cannot  stand  and  nmst  be 
sent  back  to  the  arbitrator,  with  a  declaration  that  the  contention  of 
the  appellants  on  the  first  question  so  far,  but  only  so  far,  as  they  con- 
tended that  the  several  facts  relied  upon  by  them  were  relevant  matter 
to  be  considered  by  the  arbitrator  in  assessing  the  damages  was  right, 
and  that  of  the  respondents  on  the  second  question  was  wrong.  The 
appellants  are  entitled  to  their  costs  here  and  in  the  Court  of  Appeal, 
and  of  the  proceedings  in  the  Divisional  Court  on  the  motion  to  set 
aside  the  award. 


820  PERROTT    V.    SHEARER.  [CHAP.    VI. 


PERROTT  V.   SHEARER. 
Supreme  Court  of  Michigan,  1868. 

[Reported  17  Mich.  48.] 

This  was  an  action  of  trespass  against  the  defendant,  plaintiff  in 
error,  for  seizing  and  taking  certain  goods  of  the  plaintiff,  defendant 
in  error. 

The  defendant  below  pleaded  the  general  issue  and  gave  notice  that 
the  property  seized  was  in  possession  of  one  Henry  H.  Swinscoe;  that 
defendant,  at  said  time,  was  Sheriff  of  Bay  county;  that  on  the  24th 
day  of  July,  1865,  a  writ  of  attachment  was  issued  out  of  the  Bay 
County  Circuit  Court,  against  the  goods  and  chattels  of  said  Swinscoe, 
and  that  he  seized  and  took  the  property  mentioned,  if  at  all,  by  virtue 
of  said  attachment,  etc. 

CooLEY,  C.  J.  .  .  .  The  principal  question  in  the  case  springs  from 
the  fact  that  the  goods,  while  under  the  control  of  the  defendant, 
in  pursuance,  as  the  plaintiff  claimed,  of  said  attaclunent  levy,  were 
accidentally  destroyed  by  fire.  The  plaintiff,  it  appears,  held,  at  the 
time,  insurance  policies  upon  them  to  their  full  value,  and,  after  the 
fire,  presented  to  the  insurance  companies  proofs  of  the  loss,  and  re- 
ceived pay  therefor.  Upon  this  state  of  facts  it  was  claimed  by  defend- 
ant, that  plaintiff's  position  was  the  same  as  if  he  had  repossessed  him- 
self of  the  goods  by  replevin;  and  that  he  was  entitled  to  recover 
damages  only  for  their  detention  up  to  the  time  of  the  fire.  The  Cir- 
cuit Judge  held  differently,  and  instructed  the  jury  that  the  plaintiff 
was  entitled  to  recover  the  full  value  of  the  goods,  and  he  had  judgment 
for  the  value  accordingly. 

It  certainly  strikes  one,  at  fu'st,  as  somewhat  anomalous,  that  a 
party  should  be  in  position  to  legally  recover  of  two  different  parties 
the  full  value  of  goods  which  he  has  lost ;  but  we  think  the  law  warrants 
it  in  the  present  case,  and  that  the  defendant  suffers  no  wrong  by  it. 
He  is  found  to  be  a  wrongdoer  in  seizing  the  goods,  and  he  can  not 
relieve  himself  from  responsibility  to  account  for  their  full  value  except 
by  restoring  them.  He.  has  no  concern  with  any  contract  the  plaintiff 
may  have  with  any  other  party  in  regard  to  the  goods,  and  his  rights 
or  liabilities  can  neither  be  increased  nor  diminished  by  the  fact  that 
such  a  contract  exists.  He  has  no  equities  as  against  the  plaintiff 
which  can  entitle  him  under  any  circumstances,  to  an  assignment  of  the 
plaintiff's  policies  of  insurance.  The  accidental  destruction  of  the 
goods  in  his  hands  was  one  of  the  risks  he  run  when  the  trespass  was 
committed,  and  we  do  not  see  how  the  law  can  relieve  him  from  the 
consequences.  If  the  owner,  under  such  circumstances,  keeps  his  in- 
terest insured,  he  can  not  be  held  to  pay  the  money  expended  for  that 


SECT.    I-V.]  BROSNAN  V.   SWEETSER.  821 

purpose  for  the  interest  of  the  trespasser.  He  already  has  a  right  of 
action  for  the  full  value  of  the  goods,  and  he  does  not  give  that  away 
by  taking  a  contract  of  insurance.  For  the  latter  he  pays  an  equivalent 
in  the  premium,  and  is,  therefore,  entitled  to  the  benefit  of  it,  if  anj^ 
benefit  shall  result.  The  trespasser  pays  nothing  for  it,  and  is,  there- 
fore, justly  entitled  to  no  return.  The  case,  we  think,  is  within  the 
principle  of  Merrick  v.  Brainard,  38  Barb.  574,  which  appears  to  us  to 
have  been  correctly  decided.  The  plaintiff  recovers  of  the  defendant 
for  the  wrong  that  has  been  done  hini  in  taking  his  goods ;  and  he  re- 
covers of  the  insurance  company  a  large  sum  for  a  small  outlay,  because 
such  payment  was  the  risk  they  assumed,  and  for  which  they  were  fairly 
compensated.  It  is  not  a  question  of  importance  in  this  inquiry, 
whether  the  act  of  the  defendant  caused  the  loss  or  not:  his  equitable 
claim  to  a  reduction  of  damages,  if  he  could  have  any,  would  spring 
from  the  fact  that  the  plaintiff  recovers  pay  for  his  property  twice ;  but 
the  answer  to  this  is,  that  he  recovers  but  once  for  the  wrong  done  him, 
and  he  receives  the  insurance  money  upon  a  contract  to  which  the 
defendant  is  in  no  way  privy,  and  in  respect  to  which  his  own  wrongful 
act  can  give  him  no  equities. 


BROSNAN  V.  SWEETSER. 
Supreme  Court  of  Indiana,  1891. 

[Reported  127  Ind.  1.] 

Olds,  C.  J.  This  is  an  action  by  the  appellee  against  the  appellants 
for  damages  resulting  from  injuries  sustained  by  the  appellee  in  falling 
through  a  trap-door  in  the  store-room  of  appellants.  .  .  . 

One  element  of  damage  is  the  reasonable  value  of  properly  nursing 
and  caring  for  the  injured  person.  If  this  be  done  by  some  good  friend 
or  member  of  the  family,  who  donated  his  services,  that  is  the  good 
fortune  of  the  appellee,  and  a  matter  with  which  the  persons  liable 
have  no  concern.  If  she  had  paid  ten  times  the  true  value  of  such 
services  she  could  only  have  recovered  what  such  services  were  rea- 
sonably worth.  Her  contract  or  liability  has  nothing  to  do  with  the 
liability  of  the  appellants.  If  they  are  liable  for  damages  on  account 
of  the  injuries,  they  are  liable  for  the  reasonable  value  of  the  necessary 
services  of  a  nurse,  the  same  as  the  services  of  a  physician  or  surgeon. 
Pennsylvania  Co.  v.  Marion,  104  Ind.  239;  Summers  v.  Tarney,  123 
Ind.  5G0. 

There  is  no  error  in  the  record. 

Judgment  affirmed-,  with  costs. 


822  ARMORY    I'.    DELAMIRIE.  [CHAP.    VI. 


ELMER  V.   FESSENDEN. 
Supreme  Judicial  Court  of  Massachusetts,  1891. 

[Reported  154  Mass.  427.] 

Holmes,  J.  This  i.s  an  action  for  words  spoken  by  the  defendant, 
and  falsely  alleging  that  the  silk  furnished  by  the  plaintiff  to  his  work- 
men contained  arsenic.  .  .  . 

The  plaintiff  claimed,  as  part  of  his  damages,  trouble  which  he  was 
put  to  necessarily,  in  order  to  determine  whether  there  was  arsenic 
in  his  silk ;  and  to  protect  his  employees.  He  estimated  the  amount  at 
S5.24  per  day,  and  the  jury  allowed  him  for  eight  days  at  that  rate.  No 
exception  was  taken  to  the  ruling  allowing  a  recovery  for  this  item,  but 
instructions  were  excepted  to  which  allowed  the  plaintiff  to  recover 
irrespective  of  the  state  of  things  between  himself  and  a  company  in 
whose  general  employ  he  was,  and  to  which  he  was  accountable  for  the 
time  spent  as  stated.  That  company  had  told  the  plaintiff  that  they 
should  make  no  deduction  from  his  salary  because  of  the  lost  time. 
This  ruling  was  correct.  The  plaintiff  does  not  recover  because  he  was 
compelled  to  break  his  contract  with  the  company,  but  for  his  own  time 
and  trouble,  irrespective  of  his  contracts.  His  cause  of  action  for  that 
could  not  be  affected  if  a  stranger  saw  fit  to  pay  him  for  the  same  time, 
either  by  way  of  gift  or  upon  consideration. 

Exceptions  overruled. 


ARMORY  V.   DELAMIRIE. 
Middlesex  Assizes,  1722. 

[Reported  1  Stra.  505.] 

The  plaintiff  being  a  chimney-sweeper's  boy  found  a  jewel  and 
carried  it  to  the  defendant's  shop  (who  was  a  goldsmith)  to  know  what 
it  was,  and  delivered  it  into  the  hands  of  the  apprentice,  who,  under 
pretence  of  weighing  it,  took  out  the  stones,  and  calling  to  the  master 
to  let  him  know  it  came  to  three  halfpence,  the  master  offered  the 
boy  the  money,  who  refused  to  take  it,  and  insisted  to  have  the  thing 
again;  whereupon  the  apprentice  delivered  him  back  the  socket  with- 
out the  stones.  And  now  in  trover  against  the  master  these  points 
were  ruled : 

1.  That  the  finder  of  a  jewel,  though  he  does  not  by  sufch  finding 
acquire  an  absolute  property  or  ownership,  yet  he  has  such  a  property 
as  will  enable  him  to  keep  it  against  all  but  the  rightful  owner,  and  con- 
sequently may  maintain  trover. 


SECT.    IV.]  THE  WINKFIELD.  823 

2.  That  the  action  well  lay  against  the  master,  who  gives  a  credit 
to  his  apprentice,  and  is  answerable  for  his  neglect.  Jones  v.  Hart, 
Salk.  441,  Cor.  Holt,  C.  J.;  Mead  v.  Hamond;  Grammer  v.  Nixon,  1 
Stra.  653. 

3.  As  to  the  value  of 'the  jewel,  several  of  the  trade  were  examined 
to  prove  what  a  jewel  of  the  finest  water  that  would  fit  the  socket 
would  be  worth;  and  the  Chief  Justice. directed  the  jury,  that  unless 
the  defendant  did  produce  the  jewel,  and  show  it  not  to  be  of  the 
finest  water,  they  should  presume  the  strongest  against  him,  and 
make  the  value  of  the  best  jewels  the  measure  of  their  damages:  which 
they  accordingly  did. 


THE  WINKFIELD. 

Court  of  Appeal,  1901. 

[Reported  [1902]  P.  42.] 

Appeal  by  the  Postmaster-General  against  a  decision  of  Sir  F.  H. 
Jeune,  P.,  confirming  a  report  of  the  registrar  disallowing  a  portion  of 
a  claim  in  respect  of  the  contents  of  certain  mail-bags  lost  in  a  collision. 

The  case  raised  the  question  as  to  the  rights  of  the  Postmaster- 
General  as  bailee  of  letters  and  parcels  in  transit  by  post. 

Collins,  M.  R.  This  is  an  appeal  from  the  order  of  Sir  Francis 
Jeune  dismissing  a  motion  made  on  behalf  of  the  Postmaster-General 
in  the  case  of  The  Winkfield. 

The  question  arises  out  of  a  collision  which  occurred  on  April  5,  1900, 
between  the  steamship  Mexican  and  the  steamship  Winkfield,  and 
which  resulted  in  the  loss  of  the  former  with  a  portion  of  the  mails 
which  she  was  carr;^dng  at  the  time. 

The  owners  of  The  Winkfield  under  a  decree  limiting  liability  to 
£32,514  17s.  lOd.  paid  that  amount  into  court,  and  the  claim  in  ques- 
tion was  one  by  the  Postmaster-General  on  behalf  of  himself  and  the 
Postmasters-General  of  Cape  Colony  and  Natal  to  recover  out  of  that 
sum  the  value  of  letters,  parcels,  &c.,  in  his  custody  as  bailee  and  lost 
on  board  the  Mexican. 

The  case  was  dealt  with  by  all  parties  in  the  Court  below  as  a  claim 
by  a  bailee  who  was  under  no  liability  to  his  bailor  for  the  loss  in  ques- 
tion, as  to  which  it  was  admitted  that  the  authority  of  Claridge  v. 
South  Staffordshire  Tramway  Co.  was  conclusive,  and  the  President 
accordingly,  without  argument  and  in  deference  to  that  authority, 
dismissed  the  claim.     The  Postmaster-General  now  appeals. 

The  question  for  decision,  therefore,  is  whether  Claridge's  Case  was 
well  decided.  I  emphasize  this  because  it  disposes  of  a  point  which  was 
faintly  suggested  by  the  respondents,  and  which,  if  good,  would  dis- 


824  THE  WINKFIELD.  [CHAP.   VI. 

tinguish  Claridge's  Case,  namely,  that  the  applicant  was  not  himself 
in  actual  occupation  of  the  things  bailed  at  the  time  of  the  loss.  This 
point  was  taken  below,  and  having  regard  to  the  course  followed  by 
all  parties  on  the  hearing  of  the  motion,  I  think  it  is  not  open  to  the  re- 
spondents to  make  it  now,  and  I  therefore  deal  with  the  case  upon  the 
footing  upon  which  it  was  dealt  with  on  the  motion,  namely,  that  it  is 
covered  by  Claridge's  Case.  I  assume,  therefore,  that  the  subject- 
matter  of  the  baihnent  was  in  the  custody  of  the  Postmaster-General 
as  bailee  at  the  time  of  the  accident.  For  the  reasons  which  I  am  about 
to  state  I  am  of  opinion  that  Claridge's  Case  was  wrongly  decided, 
and  that  the  law  is  that  in  an  action  against  a  stranger  for  loss  of  goods 
caused  by  his  negligence,  the  bailee  in  possession  can  recover  the  value 
of  the  goods,  although  he  would  have  had  a  good  answer  to  an  action 
by  the  bailor  for  damages  for  the  loss  of  the  thing  bailed. 

It  seems  to  me  that  the  position,  that  possession  is  good  against  a 
\\Tongdoer  and  that  the  latter  cannot  set  up  the  jus  tertii  unless  he 
claims  under  it,  is  well  established  in  our  law,  and  really  concludes  this 
case  against  the  respondents.  As  I  shall  shew  presently,  a  long  series 
of  authorities  establishes  this  in  actions  of  trover  and  trespass  at  the 
suit  of  a  possessor.  And  the  principle  being  the  same,  it  follows  that 
he  can  equally  recover  the  whole  value  of  the  goods  in  an  action  on 
the  case  for  their  loss  through  the  tortious  conduct  of  the  defendant.  I 
think  it  involves  this  also,  that  the  wrongdoer  who  is  not  defending 
under  the  title  of  the  bailor  is  quite  unconcerned  with  what  the  rights 
are  between  the  bailor  and  bailee,  and  must  treat  the  possessor  as  the 
owner  of  the  goods  for  all  purposes  quite  irrespective  of  the  rights  and 
obligations  as  between  him  and  the  bailor. 

I  think  this  position  is  well  established  in  our  law,  though  it  may  be 
that  reasons  for  its  existence  have  been  given  in  some  of  the  cases  which 
are  not  quite  satisfactory.  I  think  also  that  the  obligation  of  the  bailee 
to  the  bailor  to  account  for  what  he  has  received  in  respect  of  the  de- 
struction or  conversion  of  the  thing  bailed  has  been  admitted  so  often  in 
decided  cases  that  it  cannot  now  be  questioned;  and,  further,  I  think 
it  can  be  shewTi  that  the  right  of  the  bailee  to  recover  cannot  be  rested 
on  the  ground  suggested  in  some  of  the  cases,  namely,  that  he  was  liable 
over  to  the  bailor  for  the  loss  of  the  goods  converted  or  destroyed.  It 
cannot  be  denied  that  since  the  case  of  Armory  v.  Delamirie,  not  to 
mention  earlier  cases  from  the  Year  Books  onward,  a  mere  finder  may 
recover  against  a  MTongdoer  the  full  value  of  the  thing  converted. 
That  decision  involves  the  principle  that  as  between  possessor  and 
wrongdoer  the  presmnption  of  law  is,  in  the  words  of  Lord  Campbell  in 
Jeffries  v.  Great  Western  Ry.  Co.,  "that  the  person  who  has  possession 
has  the  property."  In  the  same  case  he  says:  "I  tun  of  opinion  that 
the  law  is  that  a  person  possessed  of  goods  as  his  property  has  a  good 
title  as  against  every  stranger,  and  that  one  who  takes  them  from  him, 
having  no  title  in  himself,  i.   a  wrongdoer,  and  cannot  defend  himself 


SECT.    IV.]  FOWLER    V.    OILMAN.  825 

by  shewing  that  there  was  title  in  some  third  person,  for  against  a 
wrongdoer  possession  is  title.  The  law  is  so  stated  l)y  the  very  learned 
annotator  in  his  note  to  Wilbrahani  v.  Snow."  Therefore  it  is  not  open 
to  the  defendant,  being  a  wrongdoer,  to  inquire  into  the  nature  or 
limitation  of  the  possessor's  right,  and  unless  it  is  competent  for  him 
to  do  so  the  question  of  his  relation  to,  or  liability  towards,  the  true 
owner  cannot  come  into  the  discussion  at  all:  and,  therefore,  as  between 
those  two  parties  full  damages  have  to  be  paid  without  any  further  in- 
quiry. The  extent  of  the  liability  of  the  finder  to  the  true  owner  not  be- 
ing relevant  to  the  discussion  between  him  and  the  wrongdoer,  the  facts 
which  would  ascertain  it  would  not  have  been  admissible  in  evidence, 
and  therefore  the  right  of  the  finder  to  recover  full  damages  cannot  be 
made  to  depend  upon  the  extent  of  his  liability  over  to  the  true  ownier. 
To  hold  otherwise  would,  it  seems  to  me,  be  in  effect  to  permit  a  wTong- 
doer  to  set  up  a  jus  tertii  under  which  he  cannot  claim.  But,  if  this  be 
the  fact  in  the  case  of  a  finder,  why  should  it  not  be  equally  the  fact  in 
the  case  of  a  bailee?  Why,  as  against  a  wrongdoer,  should  the  nature 
of  the  plaintiff's  interest  in  the  thing  converted  be  any  more  rele- 
vant to  the  inquiry,  and  therefore  admissible  in  evidence,  than  in  the 
case  of  a  finder?  It  seems  to  me  that  neither  in  one  case  nor  the  other 
ought  it  to  be  competent  for  the  defendant  to  go  into  evidence  on  that 
matter.  ... 

Appeal  allowed. 


FOWLER  V.   OILMAN. 
Supreme  Judicial  Court  of  Massachusetts,  1847. 

[Reported  13  Met.  267.] 

Trover  for  a  wagon.  At  the  trial  in  the  court  of  common  pleas, 
before  Washburn,  J.,  there  was  evidence  tending  to  show  that  one  Orfut, 
under  whom  the  defendant  claimed  title  to  the  wagon,  bargained  the 
same  to  Henry  Fowler,  under  whom  the  plaintiff  claimed  it,  the  bargain 
being  that  the  wagon  should  be  said  Henry's  upon  his  paying  a  certain 
price;  that  Orfut  sold  his  interest  in  the  wagon  to  the  defendant,  who 
had  knowledge  of  the  aforesaid  bargain,  and  that  said  Henry  sold  his 
interest  in  the  wagon  to  the  plaintiff;  that  said  Henry  made  several 
payments  towards  the  agreed  price;  and  that  when  Orfut  sold  his  in- 
terest to  the  defendant,  a  balance  of  $14  was  due  towards  the  contract 
price  for  the  wagon. 

It  was  also  in  evidence  that,  while  the  wagon  was  in  the  defendant's 
possession,  the  plaintiff  tendered  to  him  the  aforesaid  sum  of  $14,  and 
demanded  the  wagon  of  him,  and  that  he  refused  to  accept  the  sum 
tendered,  denying  the  plaintiff's  title.    No  money  was  paid  into  court. 


826  JACKSON    V.    TURRELL.  [CHAP.   VI. 

and  there  was  no  evidence  that  the  defendant  demanded  the  S14  of 
the  plaintiff,  after  the  tender.  The  plaintiff's  counsel  asked  the  judge 
to  instruct  the  jury  that,  in  fixing  the  amount  of  damages,  if  they 
should  find  for  the  plaintiff,  they  should  not  deduct  the  $14  from  the 
estimated  value  of  the  wagon.  The  judge  so  instructed  the  jury,  who 
found  a  verdict  for  the  plaintiff  for  the  full  value  of  the  wagon.  The 
defendant  alleged  exceptions  to  the  judge's  instructions. 

Shaw,  C.  J.  It  appears  to  us  that  the  jury  should  have  been  in- 
structed to  deduct  the  fourteen  dollars  from  the  value  of  the  wagon, 
in  case  of  a  verdict  for  the  plaintiff.  No  doubt  the  true  general  rule  of 
damages,  in  trover,  is  the  value  of  the  goods  at  the  time  of  conversion, 
with  interest.  Kennedy  v.  Whitwell,  4  Pick.  466.  This  rule  applies 
where  the  plaintiff  is  the  general  owTier,  or  is  answerable  over  to  others. 
But  where  the  plaintiff  admits  that  the  defendant  has  a  lien  on  the 
propert}',  to  a  certain  amount,  that  amount  may  be  deducted  by  the 
jury,  in  assessing  damages.  Green  v.  Farmer,  4  Bur.  2214,  2223. 
Chamberlin  r.  Shaw,  18  Pick.  283.  Dresser  Manuf.  Co.  r.  Waterston, 
3  Met.  9. 

It  is  to  be  taken,  in  this  case,  and  the  plaintiff,  by  his  tender,  has 
admitted,  that  the  defendant  had  the  same  lien  on  the  wagon  which 
Orfut  had  when  he  sold  his  interest  therein  to  the  defendant,  namely, 
a  lien  for  the  unpaid  balance  of, the  price  which  Henry  Fowler  had  agreed 
to  pay  for  the  wagon,  before  it  should  become  his  property.  The 
amount  of  that  lien  is  agreed  to  have  been  fourteen  dollars.  ^ 

By  consent  of  parties,  the  verdict  may  be  amended  by  deducting 
fourteen  dollars  therefrom,  and  judgment  be  rendered  on  the  verdict 
so  amended.  Otherwise,  the  verdict  will  be  set  aside,  and  a  new  trial 
had  in  the  court  of  common  pleas. 


JACKSON   r.   TURRELL. 
Supreme  Court  of  Xew  Jersey,  1877. 

[Reported  39  N.  J.  L.  329.] 

Dixon,  J.  Byard,  being  the  owner  of  a  plot  of  land  in  Paterson, 
mortgaged  it,  Feb.  2,  1871,  to  the  Washington  Life  Insurance  Company, 
which  forthwith  duly  recorded  the  mortgage.  Afterwards,  on  Feb.  6, 
1872,  he  executed  a  second  mortgage  thereon  to  Benson,  which  was  duly 
registered  and  then  assigned  to  the  plaintiff.  Subsequently  Byard 
placed  a  boiler  and  engine  upon  the  premises.  On  Oct.  1,  1872,  he 
conveyed  the  property  to  the  Paterson  Silk  IManufacturing  Company, 
which,  on  Jan.  16,  1873,  executed  to  Miller  a  mortgage  upon  the  realty, 
and  a  separate  mortgp^ge,  securing  the  same  debt,  upon  the  boiler  and 
engine  as  chattels.    On  June  26,  1874,  Miller  sold  the  boiler  and  engine. 


SECT.    IV.]  JACKSON   V.    TURRELL.  827 

under  his  chattel  mortgage,  to  the  defendant,  who  immediately  re- 
moved them  from  the  premises.""^  .  .  . 

The  next  objection  which  the  defendant  urges  is,  that  as  there  was  a 
prior  unsatisfied  mortgage  upon  the  premises,  the  holder  of  which  had 
not  waived  his  right  to  recover  of  the  defendant  for  the  removal  of  the 
fixtures,  the  plaintiff  being  second  mortgagee  only,  could  not  maintain 
an  action.  The  ground  upon  which  a  mortgagee,  not  in  possession, 
may  support  a  suit  at  law  against  the  mortgagor,  or  his  alienee,  for 
damages  resulting  from  acts  injurious  to  the  mortgaged  premises,  has 
not  been  settled  in  the  courts  of  this  State,  and  the  adjudications  on 
that  subject,  outside  of  New  Jersey,  are  not  in  accord,  as  will  be  per- 
ceived by  a  reference  to  the  cases  already  cited.  Sometimes  the  mort- 
gagee has  been  deemed  the  legal  owner  of  the  fee  as  against  the  mort- 
gagor and  his  assigns,  and  so  entitled  to  hold  them  responsible  for  any 
act,  beyond  ordinary  use,  injurious  to  the  land,  to  the  full  extent  of 
that  injury;  and  in  Gooding  v.  Shea,  103  Mass.  360,  a  third  mortgagee 
was  regarded  as  standing  in  that  position,  and  haxdng  the  right  to  full 
damages,  notwithstanding  the  fact  that  the  prior  mortgagees  had  su- 
perior rights  to  the  same  damages,  unless  the  defendant  could  show 
that  some  of  those  prior  mortgages  had  appropriated  the  damages  to 
themselves.  See  also  Byrom  v.  Chapin,  113  Mass.  308,  and  King  v. 
Bangs,  120  Mass.  514. 

For  so  broad  a  claim  on  behalf  of  a  first  mortgagee,  technical  argu- 
ments, deserving  of  serious  consideration,  may  perhaps  be  adduced; 
but,  I  think,  no  subsequent  mortgagee  can  establish  a  like  title.  The 
reasons  which  support  the  claim  of  the  first  mortgagee  defeat  the  claim 
of  every  other  one,  to  be  regarded  as  the  legal  owner  of  the  fee.  A 
second  mortgagee  is,  in  law,  as  in  equity,  a  mere  lien-holder,  and  in  that 
character  alone  can  he  enforce  any  demand  for  redress. 

In  the  case  of  Van  Pelt  v.  McGraw,  4  Comst.  110,  the  right  of  mort- 
gagees to  maintain  such  suits  is  declared  to  rest  upon  the  principle 
that  the  mortgage,  as  a  security,  has  been  impaired,  and  the  damages, 
it  is  said,  are  to  be  limited  to  the  amount  of  injury  to  the  mortgage, 
however  great  the  injury  to  the  land  may  be.  Upon  this  principle  all 
mortgagees  may  stand,  and  it  is  recommended  by  the  consideration 
that  it  gives  to  each  party  actually  injured  a  remedy  measured  by 
the  injury  received.  It  obviates  some  technical  objections,  as  well 
as  some  practical  difficulties,  which  attend  the  rule  first  adverted  to, 
and  enables  the  courts  of  law  to  do  justice  by  their  equitable  action  on 
the  case.  Sometimes  the  facts  disclosed  at  the  trial  may  be  of  such  a 
nature  as  to  make  it  doubtful  whether  the  damages  should  go  to  the 
plaintiff  or  to  an  earlier  mortgagee;  but,  in  those  cases,  the  defendant 
is  placed  in  no  greater  danger  than  is  a  defendant  in  an  action  upon  a 
policy  of  insurance,  brought  by  the  owner,  where  the  loss  is  made  pay- 
able to  the  mortgagee,  and  the  language  of  the  court  in  such  a  case 

1  Part  of  the  opinion  is  omitted. 


828  KING    V.    BANGS.  [CHAP.    VI. 

(Martin  v.  Franklin  Fire  Insurance  Co.,  9  Vroom,  140,  145)  indicates  a 
mode  in  which  all  interests  may  be  guarded :  "  The  rights  of  the  (earlier) 
mortgagee  can  be  protected  by  payment  of  the  money  into  court,  and 
the  insurer  (defendant)  may  obtain  indemnity  against  any  subsequent 
suit  by  the  (earlier)  mortgagee,  by  the  action  of  the  court  into  which  the 
money  is  paid;  if  actions  be  pending  at  the  same  time  by  the  owner  and 
the  mortgagee  (two  mortgagees),  the  court,  under  its  equitable  powers, 
can  so  control  the  litigation  that  no  injustice  will  be  done." 


KING  V.   BANGS. 
Supreme  Judicial  Court  of  Massachusetts,  1876. 

[Reported  120  Mass.  514.] 

Tort  for  breaking  and  entering  the  plaintiff's  close,  and  removing 
certain  fixtures  therefrom.  The  declaration  contained  two  counts. 
At  the  trial  in  the  Superior  Court,  before  Brigham,  C.  J.,  the  jury  re- 
turned a  verdict  for  the  plaintiff,  and  a  bill  of  exceptions  was  allowed, 
the  materials  parts  of  which  appear  in  the  opinion. 

Colt,  J.  Both  counts  in  the  plaintiff's  declaration  are  for  trespass 
to  real  estate,  and  allege  the  taking  and  carrying  away  of  the  fixtures 
and  other  parts  of  a  dwelling-house  thereon  standing.  The  plaintiff  at 
the  trial  claimed  to  recover  as  mortgagee  for  the  injury  to  his  security. 
The  defendants  ofPered  to  show  that  after  the  injury  complained  of, 
and  before  this  action  was  begun,  the  plaintiff,  under  the  power  of 
sale  in  his  mortgage,  sold  the  premises  for  more  than  enough  to  pay 
his  debt  and  all  prior  incumbrances,  and  conveyed  the  same  to  th'e 
purchaser.  The  defendants'  answer  was  a  general  denial,  but  no  ques- 
tion was  then  made  or  is  now  made  as  to  the  admissibility  of  the  evidence 
under  the  pleadings.  The  judge  ruled  that  the  measure  of  damages  was 
the  actual  amount  of  the  injury  done  to  the  building,  and  excluded 
the  evidence.  We  are  of  opinion  that  this  evidence  upon  the  question 
of  damages  was  improperly  excluded. 

A  mortgagee,  if  there  is  anything  due  on  his  mortgage,  whether 
in  possession  or  not,  may  maintain  an  action  of  tort,  and  recover  the 
full  value  of  fixtures  wrongfully  removed,  on  the  ground  that  his 
security  has  been  thereby  diminished.  Under  our  decisions,  the  right 
to  recover  does  not  depend  on  proof  of  the  insufficiency  of  the  security; 
because,  until  the  whole  debt  is  paid,  the  mortgagee  has  a  right  to  the 
whole  security  pledged,  and,  if  deprived  of  any  part  of  it,  he  is  entitled 
to  full  redress  therefor.  A  mortgagor  in  possession  may  also  recover  for 
the  same  injury  in  an  action  of  trespass,  by  way  of  aggravation.  It  does 
not  follow,  however,  that  the  defendant  is  compelled  to  pay  full  damages 
to  each  successively,  because  he  may  escape  the  claim  of  the  latter 


SECT.   IV.]  KING  V.   BANGS.  829 

by  showing  that  he  has  settled  with  one  having  superior  right;  and, 
satisfaction  so  made,  discharges  the  claims  of  all.  When  the  action  is 
trespass  for  a  breach  of  the  close,  damages  for  the  removal  of  the 
fixtures  are  incidental  to  the  action  and  separable  from  it.  But,  in 
whatever  form  recovered,  they  arise  out  of  and  pertain  to  the  estate, 
and,  when  recovered  by  a  mortgagee,  must  be  applied  by  him  in  pay- 
ment of  the  mortgage  debt.  It  was  accordingly  held  in  Gooding  v. 
Shea,  103  Mass.  360,  that  a  mortgagee  could  recover  the  full  amount  of 
the  damages  caused  to  the  estate  by  the  removal  of  the  fixtures,  without 
regard  to  the  sufficiency  of  the  security,  and  although  the  mortgagor  in 
possession  had  sued  the  defendant  for  the  same  acts.  See,  also,  Byrom 
v.  Chapin,  113  Mass.  308.  The  rule  Vv^hich  prevails  in  New  York  is 
otherwise,  and  the  plaintiff  is  required  in  such  case  to  show  the  insuffi- 
ciency of  the  security.  Lane  v.  Hitchcock,  14  Johns.  213.  Gardner  v. 
Heartt,  3  Denio,  232^ 

In  the  case  at  bar,  evidence  of  the  pajTnent  of  the  plaintiff's  mort- 
gage and  the  termination  of  his  interest  in  the  mortgaged  estate  was 
offered  by  the  defendant.  The  general  rule  is  that  damages  must  be 
precisely  commensurate  with  the  injury  which  the  plaintiff  suffers  by 
the  act  of  WTong  at  the  time  it  was  committed;  but  under  this  rule  the 
defendant  is  constantly  permitted  to  give  in  evidence  the  plaintiff's 
subsequent  change  of  relation  to  the  property,  for  the  purpose  of  show- 
ing that  the  damages,  to  which  he  would  otherwise  have  been  entitled, 
have  been  thereby  diminished.  Thus,  if  he  has  only  a  special  property, 
or  a  qualified  interest,  subject  to  which  the  defendant  has  acquired 
title,  and  the  plaintiff  can  be  indemnified  by  a  sum  less  than  the  full 
value,  that  sum  is  the  measure  of  damages.  Chamberlin  v.  Shaw,  18 
Pick.  278.  So  when  in  trover  the  property  has  been  restored  to  the 
plaintiff,  or  been  applied  to  the  pa^Tnent  of  his  debts,  or  otherwise 
come  to  his  use  the  fact  may  be  showTi  in  mitigation  of  damages. 
Pierce  v.  Benjamin,  14  Pick.  356.  Kaley  v.  Shed,  10  Met.  317.  Squire 
V.  Hollenbeck,  9  Pick.  551.  And  in  no  case  can  a  party  having  a  special 
or  qualified  interest  recover  damages  beyond  the  extent  of  his  interest, 
except  as  he  is  trustee,  and  responsible  over  to  the  general  owner. 
Jarvis  v.  Rogers,  15  Mass.  389.  If  the  plaintiff  were  permitted  here 
to  recover  full  damages,  he  would  either  hold  the  same  with  no  re- 
sponsibility over,  or  he  would  be  obliged  to  pay  it  over  immediately  to 
the  owner  of  the  equity  at  the  time  of  the  injury,  and  who  then  had  a 
right  of  action  for  it.  The  ownier  of  the  land  subject  to  the  mortgage 
is  the  only  one,  on  the  evidence  offered,  who  appears  to  have  suffered  any 
actual  damage  by  the  removal  of  the  fixtures ;  and  there  is  no  rule  of  law 
which  prevents  the  defendant  from  showing  that  fact  in  just  mitigation 
of  the  plaintiff's  claim  for  damages  at  least. 

Exceptions  sustained. 


830  DAY   V.   WOODWORTII.  [CHAP.    VI. 


DAY  r.   WOODWORTH. 
Supreme  Court  of  the  United  States,  1851. 

[Reported  13  How.  363.] 

Grier,  J.  The  plaintiff  in  error  was  plaintiff  below  in  an  action  of 
trespass,  charging  the  defendants  with  tearing  down  and  destroying  his 
niilldani.  The  defendants  pleaded  in  justification  that  the  Berkshire 
Woollen  Company  owned  mills  above  the  dam  of  plaintiff,  who  illegally 
erected  and  maintained  the  same,  so  as  to  injure  the  mills  above;  that 
by  direction  of  said  company,  and  as  their  agents  and  servants,  they 
did  enter  plaintiff's  close,  and  did  break  down  and  demolish  so  much  of 
the  plaintiff's  dam  as  was  necessary  to  remove  the  nuisance  and  injury 
to  the  mills  above,  and  no  more,  and  as  they  la^vfuUy  might.  To  this 
plea  the  plaintiff  replied  de  injuria,  &c. 

On  the  trial  of  this  issue,  the  defendants  "  claimed  the  right  to  begin 
and  offer  their  evidence  first,  and  open  and  close  the  argument.  The 
plaintiff  claimed  the  same  right.  The  court  ruled  in  favor  of  the  de- 
fendants, to  which  the  plaintiff  excepted."  This  ruling  of  the  court 
is  now  alleged  as  error. 

Our  attention  has  been  pointed  to  nimierous  decisions  of  English  and 
American  courts  on  this  subject,  which  we  think  it  unnecessary  to 
notice  more  particularly,  than  to  state,  that  the  question  whether  a 
defendant  in  trespass  who  pleads  a  plea  in  justification  only,  has  a 
right  to  begin  and  conclude,  has  been  differently  decided  in  different 
courts.  It  is  a  question  of  practice  only,  and  depends  on  the  peculiar 
rules  of  practice  which  the  court  may  adopt.  The  English  courts  have 
regretted  that  an  objection  to  the  ruling  of  the  court  at  nisi  prius  on  this 
question  should  ever  have  been  permitted  to  be  received  as  a  ground 
for  a  new  trial.  But  although  a  court  may  sometimes  grant  a  new  trial 
where  the  judge  has  not  accorded  to  a  party  certain  rights  to  which, 
by  the  rules  of  practice  of  the  court,  he  may  l)e  justly  entitled,  we  are 
of  opinion  that  the  ruling  of  the  court  below  on  such  a  point  is  not  the 
proper  subject  of  a  bill  of  exceptions  or  a  writ  of  error.  A  question  as 
to  the  order  in  which  counsel  shall  address  the  jury  does  not  affect  the 
merits  of  the  controversy.  As  a  matter  of  practice,  the  Circuit  Court  of 
Massachusetts  had  a  right  to  make  its  own  rules.  The  record  does  not 
show  that  the  rule  of  the  court  is  different  from  their  judgment  on-  this 
occasion.  So  that  the  plaintiff'  has  failed  to  show  any  error  in  the  de- 
cision, assuming  it  to  be  a  proper  subject  of  exception. 

The  great  question,  on  the  trial  of  this  case,  appears  to  have  been 
whether  the  plaintiff's  dam  was  higher  than  he  had  a  right  to  main- 
tain it,  and  if  so,  whether  the  defendants  had  torn  down  more  of  it,  or 
made  it  lower  than  they  had  a  right  to  do. 


SECT.    IV.]  DAY   V.    WOOD  WORTH.  8.31 

The  plaintiff's  counsel  requested  the  court  to  instruct  the  jury  that 
"they  might  allow  counsel -fees,  &c.,  if  there  was  any  excess  in  taking 
down  more  of  the  dam  than  was  justifiable,  and  give  as  a  reason  that 
the  defendants  thereby  became  trespassers  ab  initio." 

The  court  instructed  the  jury  "  that  if  they  should  find  for  the  plain- 
tiff on  the  first  ground,  viz.,  that  the  defendants  had  taken  down  more 
of  the  dam  than  was  necessary  to  relieve  the  mills  above,  unless  such 
excess  was  wanton  and  maliciousj  then  the  jury  would  allow  ua  damages 
the  cost  of  replacing  such  excess,  and  compensation  for  any  delay  or 
damage  occasioned  by  such  excess,  but  not  any  thing  for  counsel-fees 
or  extra  compensation  to  engineers." 

This  instruction  of  the  court  is  excepted  to,  on  two  grounds.  First, 
because  "  this  being  an  action  of  trespass,  the  plaintiff  was  not  limited 
to  actual  damages  proved,"  and  secondly,  that  the  jury,  under  the 
conditions  stated  in  the  charge,  should  have  been  instructed  to  include 
in  their  verdict  for  the  plaintiff,  not  only  the  actual  damages  suffered, 
but  his  counsel-fees  and  other  expenses  incurred  in  prosecuting  his 
suit. 

It  is  a  well-established  principle  of  the  common  law,  that  in  actions 
of  trespass  and  all  actions  on  the  case  for  torts,  a  jury  may  inflict  what 
are  called  exemplary,  punitive,  or  vindictive  damages  upon  a  defendant 
having  in  view  the  enormity  of  his  offence  rather  than  the  measure  of 
compensation  to  the  plaintiff.  We  are  aware  that  the  propriety  of 
this  doctrine  has  been  questioned  by  some  writers;  but  if  repeated 
judicial  decisions  for  more  than  a  century  are  to  be  received  as  the  best 
exposition  of  what  the  law  is,  the  question  will  not  admit  of  argument. 
By  the  common  as  well  as  by  statute  law,  men  are  often  punished  for 
aggravated  misconduct  or  lawless  acts,  by  means  of  a  civil  action,  and 
the  damages,  inflicted  by  way  of  penalty  or  punisliment,  given  to  the 
party  injured.  In  many  civil  actions,  such  as  libel,  slander,  seduction, 
&c.,  the  wrong  done  to  the  plaintiff  is  incapable  of  being  measured  by  a 
money  standard;  and  the  damages  assessed  depend  on  the  circum- 
stances, showing  the  degree  of  moral  turpitude  or  atrocity  of  the  defend- 
ant's conduct,  and  may  properly  be  termed  exemplary  or  vindictive 
rather  than  compensatory. 

In  actions  of  trespass,  where  the  injury  has  been  wanton  and  mali- 
cious, or  gross  and  outrageous,  courts  permit  juries  to  add  to  the  meas- 
ured compensation  of  the  plaintiff  which  he  would  have  been  entitled 
to  recover,  had  the  injury  been  inflicted  without  design  or  intention, 
something  farther  by  way  of  punislmient  or  example,  which  has  some- 
times been  called  "smart  money."  This  has  been  always  left  to  the 
discretion  of  the  jury,  as  the  degree  of  punishment  to  be  thus  inflicted 
must  depend  on  the  peculiar  circumstances  of  each  case.  It  must  be 
evident,  also,  that  as  it  depends  upon  the  degree  of  malice,  wanton- 
ness, oppression,  or  outrage  of  the  defendant's  conduct,  the  punishment 
of  his  delinquency  cannot  be  measured  by  the  expenses  of  the  plaintiff 


832  ,  DAY    v.    WOODWORTH.  [CHAP.    VI. 

in  prosecuting  his  suit.  It  is  true  that  damages,  assessed  by  way  of 
example,  may  thus  indirectly  compensate  the  plaintiff  for  money  ex- 
pended in  counsel-fees;  but  the  amount  of  these  fees  cannot  be  taken 
as  the  measure  of  punishment  or  a  necessary  element  in  its  infliction. 

This  doctrine  about  the  right  of  the  jury  to  include  in  their  verdict, 
in  certain  cases,  a  sum  sufficient  to  indemnify  the  plaintiff  for  counsel- 
fees  and  other  real  or  supposed  expenses  over  and  above  taxed  costs, 
seems  to  have  been  borrowed  from  the  civil  law  and  the  practice  of  the 
courts  of  admiralty.  At  first,  by  the  common  law,  no  costs  were 
awarded  to  either  party,  eo  nomine.  If  the  plaintiff  failed  to  recover  he 
was  amerced  pro  falso  clamore.  If  he  recovered  judgment,  the  de- 
fendant was  in  misrricordia  for  his  unjust  detention  of  the  plaintiff's 
debt,  and  was  not  therefore  punished  with  the  cxpcnsa  litis  under  that 
title.  But  this  being  considered  a  great  hardship,  the  statute  of  Glou- 
cester (6  Ed.  1,  t?.  1,)  was  passed,  which  gave  costs  in  all  cases  when 
the  plaintiff"  recovered  damages.  This  was  the  origin  of  costs  de  in- 
cremenio;  for  when  the  damages  were  found  by  the  jury,  the  judges  held 
themselves  obliged  to  tax  the  moderate  fees  of  coimsel  and  attorneys 
that  attended  the  cause.    See  Bac.  Abr.  tit.  Costs. 

Under  the  provisions  of  this  statute  every  court  of  common  law  has 
an  established  system  of  costs,  which  are  allowed  to  the  successful  party 
by  way  of  amends  for  his  expense  and  trouble  in  prosecuting  his  suit. 
It  is  true,  no  doubt,  and  is  especially  so  in  this  country,  (where  the 
legislatures  of  the  different  States  have  so  much  reduced  attorneys' 
fee-bills,  and  refused  to  allow  the  ho7iorarium  paid  to  counsel  to  be 
exacted  from  the  losing  party,)  that  the  legal  taxed  costs  are  far  below 
the  real  expenses  incurred  by  the  litigant;  yet  it  is  all  the  law  allows 
as  expensa  litis.  If  the  jury  may,  "if  they  see  fit,"  allow  counsel-fees 
and  expenses  as  a  part  of  the  actual  damages  incurred  by  the  plaintiff, 
and  then  the  court  add  legal  costs  de  incremento,  the  defendants  may 
be  truly  said  to  be  in  misericordia,  being  at  the  mercy  both  of  court  and 
jury.  Neither  the  common  law,  nor  the  statute  law  of  any  State,  so  far 
as  we  are  informed,  has  invested  the  jury  with  this  power  or  privilege. 
It  has  been  sometimes  exercised  by  the  permission  of  courts,  but  its 
results  have  not  been  such  as  to  recommend  it  for  general  adoption 
either  by  courts  or  legislatures. 

The  only  instance  where  this  power  of  increasing  the  "actual  dam- 
ages" is  given  by  statute  is  in  the  patent  laws  of  the  United  States. 
But  there  it  is  given  to  the  court  and  not  to  the  jury.  The  jury  must 
find  the  "actual  damages"  incurred  by  the  plaintiff  at  the  time  his 
suit  was  brought ;  and  if,  in  the  opinion  of  the  court,  the  defendant  has 
not  acted  in  good  faith,  or  has  been  stubbornly  litigious,  or  has  caused 
unnecessary  expense  and  trouble  to  the  plaintiff,  the  court  may  increase 
the  amount  of  the  verdict,  to  the  extent  of  trebling  it.  But  this  penalty 
cannot,  and  ought  not,  to  be  twice  inflicted;  first,  at  the  discretion 
of  the  jury,  and  again  at  the  discretion  of  the  court.     The  expenses 


3 


SECT.    IV.]  RYERSON   V.    CHAPMAN.  833 

of  the  defendant  over  and  above  taxed  costs  are  usually  as  great  as 
those  of  plaintiff;  and  yet  neither  court  nor  jury  can  compensate  him, 
if  the  verdict  and  judojment  be  in  his  favor,  or  amerce  the  plaintiff  pro 
falso  clamorc  beyond  tax  costs.  Where  such  a  rule  of  law  exists  allowing 
the  jury  to  find  costs  de  increviento  in  the  shape  of  counsel-fees,  or  that 
equally  indefinite  and  unknown  quantity  denominated  (in  the  plain- 
tiff's prayer  for  instruction)  "&c.,"  they  should  be  permitted  to  do  the 
same  for  the  defendant  where  he  succeeds  in  his  defence,  otherwise  the 
parties  are  not  sufl'ered  to  contend  in  an  equal  field.  Besides,  in  actions 
of  debt,  covenant,  and  assimipsit,  where  the  plaintiff  always  recovers  his 
actual  damages,  he  can  recover  but  legal  costs  as  compensation  for  his 
expenditure  in  the  suit,  and  as  punishment  of  defendant  for  his  unjust 
detention  of  the  debt;  and  it  is  a  moral  offence  of  no  higher  order,  to 
refuse  to  pay  the  price  of  a  patent  or  the  damages  for  a  trespass,  which 
is  not  wilful  or  malicious,  than  to  refuse  the  payment  of  a  just  debt. 
There  is  no  reason,  therefore,  why  the  law  should  give  the  plaintift" 
such  an  advantage  over  the  defendant  in  one  case,  and  refuse  it  in  the 
other.  See  Barnard  v.  Poor,  21  Pickering,  382;  and  Lincoln  r.The  Sara- 
toga Railroad,  29  Wendell,  435. 

We  are  of  opinion,  therefore,  that  the  instruction  given  by  the  court 
in  answer  to  the  prayer  of  the  plaintiff,  was  correct. 

The  instruction  to  the  jury,  also,  was  clearly  proper  as  respected  the 
measure  of  the  damages,  and  that  the  jury  had  nothing  to  do  with 
the  question  whether  their  verdict  would  carry  costs.  The  judgment 
is  therefore  affirmed. 


RYERSON   V.   CHAPMAN. 

Supreme  Judicial  Court  of  Maine,  1877. 

[Reported  6G  Me.  557.] 

Peters,  J.  The  cA-idence  in  this  case  is  meagre.  Aided  by  the 
briefs  of  counsel,  we  understand  the  facts,  among  other  things,  to  show 
as  follows:  The  defendant,  getting  a  supposed  title  to  a  parcel  of  land 
by  levy,  conveyed  the  land  to  the  plaintiff  by  a  warrantee  deed.  The 
plaintiff  had  been  in  an  undisturbed  occupation  of  the  land  under  his 
deed  for  about  fifteen  years,  when  his  possession  was  invaded  by  one 
Carleton,  who  claimed  title  to  the  land  upon  the  ground  that  the  lew 
under  which  the  defendant  acquired  the  land,  was  defective  and  void. 
The  pkintiff  sued  Carleton,  and  Carleton  sued  the  plaintiff,  in  actions 
of  trespass,  and  several  other  suits  followed  between  them.  While  all 
the  suits  were  pending,  one  of  them  was  carried  up  to  decide  the  ques- 
tion of  title  to  the  land,  and  Carleton  prevailed,  as  will  be  seen  in 


834  RYERSON  v.   CIL\PMAN.  [CHAP.    VI. 

Carleton  v.  Ryerson,  59  Maine,  438.  After  this,  the  defendant  paid 
to  the  phiintiff  all  the  costs  and  counsel  fees  incurred  in  the  defense  of 
that  action,  and  also  paid  him  the  value  of  the  land  from  which  he 
was  evicted,  but  refused  to  pay  the  damages,  costs,  and  expenses  ih'^ 
curred  in  the  other  actions.  Several  actions  were  brought  against  the 
plaintiff,  and  there  were  two  in  his  favor.  Several  questions  of  law 
and  fact  are  referred  to  us  and  we  have,  by  agreement,  jury  powers  to 
aid  us  in  deciding  them. 

First:  The  defendant  asserts  that  there  is  np  evidence  that  the 
plaintiff  received  from  the  defendant  any  seizin  of  the  land  in  law  or 
fact,  and  that  therefore  the  plaintiff  cannot  recover,  having  already 
received  more  than  the  amount  of  the  consideration  paid  therefor, 
with  interest  on  the  same.  But  we  think  the  legitimate  inference  from 
the  evidence  is,  that  a  seizin  in  fact  was  obtained.  The  parties  have 
proceeded  in  the  case  upon  that  assumption,  and  the  defendant  claims 
that  he  has  already  settled  all  the  damages  on  that  basis. 

Then,  the  defendant  contends,  that  it  is  not  shown  that  the  judg- 
ments recovered  against  persons  of  the  name  of  Ryerson,  other  than  the 
plaintiff,  arose  out  of  suits  instituted  against  them  as  the  servants  of 
the  plaintiff,  or  that  the  suits  were  defended  in  vindication  of  tlif  plain- 
tiff's title  to  the  land,  or  that  the  plaintiff  had  paid  the  judgments. 
But  we  think  that  these  facts,  though  not  clearly  stated,  are  fairly 
inferable  upon  an  examination  of  all  the  evidence  in  the  case. 

This  brings  us  to  the  principal  question  of  law  in  the  case,  which 
is,  whether  the  plaintiff  is  entitled  to  recover,  under  the  warranty  of 
title,  any  more  of  the  costs  and  expenses  of  litigation  paid  by  him  than 
what  grew  out  of  a  single  suit.  The  defendant  maintains  that  he  can- 
not recover  more,  upon  the  supposition  that  one  litigation  was  suffi- 
cient to  settle  the  question  of  title.  It  is  our  judgment  that  the  plaintiff 
can  recover  more  than  the  expenses  of  litigating  one  suit. 

This  question  is  pretty  well  solved  by  a  reference  to  the  nature  of  the 
covenant  of  warranty.  The  American  form  (in  most  deeds)  is  a  brief 
one,  but  much  more  than  is  expressed  therein  is  technically  implied. 
It  is  the  "sweeping"  covenant  in  this  country,  and  practically  includes 
what  is  embraced  in  the  covenant  for  quiet  enjoyment  generally  found 
in  English  conveyances.  The  words  of  the  latter  covenant  when  set 
forth  at  length,  (some  short  form  is  generally  used,)  are  these:  "  It  shall 
be  lawful  for  the  said  grantee,  his  heirs  and  assigns,  from  time  to  time, 
and  all  times  hereafter,  peaceably  and  quietly  to  enter  upon,  have,  hold, 
occupy,  possess  and  enjoy  the  said  lands  and  premises  hereby  conveyed 
or  intended  so  to  be,  with  their,  and  every  of  their  appurtenances, 
and  to  have,  receive,  and  take  the  rents,  issues,  and  profits  thereof, 
to  anfl  for  his  and  their  use  and  benefit,  without  any  let,  suit,  trouble, 
denial,  eviction,  interruption,  claim,  or  demand  whatsoever,  of,  from 
or  by  him,  the  said  grantor,  or  his  heirs,  or  any  person  or  persons  whom- 
soever."    Rawle  on  Gov.   182.     This  covers  extensive  ground.     In 


SECT.    I^  .]  RYERSON    V.    CHAPMAN.  ■     835 

Howell  V.  Richards,  11  East.  633,  642,  Lord  Ellenborough,  C.  J.,  says: 
"  The  covenant  for  quiet  enjoyment  is  an  assurance  against  the  conse- 
quences of  a  defective  title,  and  of  any  disturbances  thereupon.  For 
the  purpose  of  this  covenant,  and  the  indemnity  it  affords,  it  is  im- 
material in  what  respects,  and  by  what  means,  or  by  whose  acts,  the 
eviction  of  the  grantee  or  his  heir  takes  place;  if  he  be  lawfully  evicted, 
the  grantor,  by  such  his  covenant,  stipulates  to  indemnify  him  at  all 
events." 

The  covenant  of  warranty  amounts  to  an  agreement  of  indemnity. 
The  foundation  of  a  claim  for  damages  under  it,  must  be  that  an  evic- 
tion, or  something  equivalent  thereto,  has  properly  taken  place.  The 
covenantee,  who  has  been  evicted,  is  entitled  to  have  repaid  to  him  all 
reasonable  outlay  which  he  in  good  faith  expends  for  the  assertion 
or  defense  of  the  title  warranted  to  him.  Weston,  C.  J.,  says:  (Swett  r. 
Patrick,  12  Maine,  9,  10)  "He  (covenantee)  was  justified  in  making 
every  fair  effort  to  retain  the  land."  If  he  is  assaulted  with  ever  so 
many  suits,  he  must  defend  them,  unless  it  is  clear  that  a  defense  would 
avail  nothing.  If  he  defends  but  one,  and  lets  the  others  go  by  default, 
he  might  get  himself  into  inextricable  trouble.  It  is  as  essential  that  he 
should  defend  all  the  suits  as  any  one  of  them.  A  defender  of  a  walled 
city  might  as  well  plant  all  his  means  of  defense  at  a  single  gate,  and 
leave  all  the  others  undefended,  to  be  entered  by  the  enemy. 

The  covenantee  becomes  the  agent  of  the  covenantor,  in  making  a 
defense  against  suits.  He  should  do  for  his  warrantor  what  the  warran- 
tor should  do  for  himself,  if  in  possession.  It  is  no  more  expensiA'e  for  the 
warrantor  to  defend  suits  brought  against  his  agent,  than  suits  against 
himself,  and  the  presmnption  is,  that  he  would  have  been  a  party  to  the 
same  litigations,  had  he  remained  in  possession.  But  the  agent  must 
act  cautiously  and  reasonably.  He  has  no  right  to  "  inflame  his  own 
account"  (11  A.  &  E.  2S)  nor  indulge  in  merely  quarrelsome  cases. 

It  follows,  therefore,  that  the  plaintiff  may  recover  for  the  damages 
and  costs  and  expenses  of  suits  brought  against  him,  and  also  for  the 
costs  and  expenses  of  suits  brought  by  him,  affecting  the  title  to  the 
estate.  Each  suit  may  have  been  a  part  of  the  means  by  which  the  title 
was  sought  to  be  defended.  The  case  in  108  Mass.  270,  (Merritt  v. 
Morse,)  cited  by  the  plaintiff,  seems  quite  identical  with  this  case. 
We  have  carefully  considered  the  able  argument  of  the  counsel  for  the 
defendant,  but  cannot  concur  in  it..  The  cases  cited  by  him  upon  this 
point,  do  not  go  far  enough  to  sustain  his  position.  The  language  used 
in  them  is  appropriate  enough  to  the  idea  of  one  suit  only  being  neces- 
sary to  settle  a  question  of  title,  but  in  such  cases  the  damages  and 
costs  of  one  suit  only  were  involved.  None  of  them  decide,  or  under- 
take to  decide,  the  question  presented  here. 

The  defendant  contends  that  he  is  not  liable  for  the  costs  and  counsel 
fees  in  some  of  the  actions,  of  the  pendency  of  which  he  was  not  notified. 
But  notice  was  not  necessary  to  put  upon  him  such  a  liability.    Without 


836  RYERSON   V.    CILA.PMAN.  [CHAP.    VI. 

a  notice,  the  plaintiff  can  recover  his  damages  caused  by  the  failure  of  the 
title  warranted  to  him.  And,  in  this  state,  the  costs  of  the  former  action 
and  the  expenses  of  counsel  fees  attending  it,  whether  in  asserting  or 
defending  the  title,  are  a  portion  of  the  damages  recoverable.  The 
want  of  notice  of  a  suit  to  the  warrantor,  undoubtedly  increases  the 
burden  of  proof  that  falls  on  the  warrantee.  In  such  case  he  would  be 
held  to  prove  that  the  actions  brought  against  hifn  were  reasonably 
defended,  and  that  the  costs  were  fairly  and  necessarily  incurred.  And 
as  to  the  costs  in  cases  in  which  the  warrantee  was  plaintiff  instead  of 
defendant,  and  also  as  respects  counsel  fees  and  expenses  in  cases 
where  he  was  either  plaintiff  or  defendant,  and  whether  the  covenantor 
was  notified  or  not,  from  the  nature  of  things,  the  burden  is  on  the 
covenantee  to  show  such  items  to  be  reasonable  and  proper  claims, 
where  the  grantor  does  not  appear  in  the  suits.  The  case  of  Swett  v. 
Patrick,  12  IVIaine,  9,  does  not  decide  that  such  items  are  not  recoverable 
where  no  notice  was  given,  but  gives  the  fact  of  notice  as  an  additional 
or  conclusive  reason  why  they  should  be  included  in  the  damages. 
We  are  aware  that  it  is  maintained  in  many  cases  that  a  judgment 
against  a  Avarrantee  is  jmina  facie  evidence  of  both  eviction  and  the 
infirmity  of  the  title,  even  though  the  warrantor  had  no  notice  of  the 
former  litigation,  in  a  suit  by  the  warrantee  against  the  warrantor 
upon  the  covenants  in  the  deed.  But  we  think  the  law  has  never  been 
so  regarded  in  this  state.  Such  judgment  "is  legally  admissible  to 
prove  the  act  of  eviction,  but  not  the  superior  title  of  the  recovering 
party."  Hardy  r.  Nelson,  27  Maine,  525,  530.  If  the  grantor  has 
notice  of  the  former  suit  and  an  opportunity  to  defend,  then,  in  the 
absence  of  fraud  or  collusion,  the  judgment  in  the  former  suit  is  con- 
clusive against  him.  But  we  do  not  think  it  reasonable  that  a  grantor 
should  be  required  to  prove  that  a  judgment  was  wTongfully  recovered 
against  his  grantee,  when  he  had  no  notice  to  be  heard.  Veazie  v. 
Penobscot  Railroad,  49  Maine,  119.  Thurston  r.  Spratt,  52  Maine,  202. 
C'oolidge  V.  Brigham,  5  Met.  68.  Chamberlain  v.  Preble,  11  Allen,  370. 
Rawle  on  Cov.  122  d  seq.    Smith  v.  Compton,  3  B.  &  Ad.  407. 

The  defendant's  next  point  of  defense  is,  that  the  claims  now  sued 
for  have  been  settled  by  an  accord  and  satisfaction,  evidenced  by  a 
receipt  which  is  a  part  of  the  case.  We  think  this  point  in  the  defense 
fails  also.  This  part  of  the  controversy  grows  out  of  a  misapprehension 
of  the  law  by  some  of  the  parties  concerned,  all  of  whom  were  acting 
honorably.  The  then  plaintiff's  counsel  supposed  that  what  he  got 
from  the  defendant  was  all  that  the  plaintiff  was  legally  entitled  to  re- 
ceive, writing  the  receipt  accordingly.  But  we  think  the  learned  coun- 
sel was  in  error  in  that  respect.  The  receipt  was  not  apparently  given 
in  compromise  of  any  disputed  or  doubtful  claim,  but  was  intended 
as  an  admission  of  the  sum  received,  and  of  the  purpose  for  which  it 
was  received,  and  to  exclude  the  presumption  that  it  was  given  for 
anything  else.     There  was  no  consideration  for  a  discharge  by  the 


SECT.    IV.]  WESTFIELD   V.   MAYO.  837 

plaintiff  of  his  present  claim.    The  receipt  is  worded  upon  the  mistaken 
idea  that  there  was  no  legal  claim. 

Upon  the  question  of  damages,  our  decision  must  necessarily  be 
somewhat  of  an  arbitrary  character.  The  case,  in  some  of  its  aspects,  is 
a  blind  one.  The  evidence  is  uncertain  and  doubtful  upon  some  points, 
and  lacks  completeness.  It  does  not  appear  whether  there  was  any 
necessity  for,  or  wisdom  in  bringing  the  suit  of  replevin  by  the  plaintiff, 
nor  whether  the  suit  in  which  the  plaintiff  recovered  nominal  damages 
concerned  this  title  or  not.  All  the  costs  look  large.  There  was 
carelessness  and  folly  somewhere,  in  carrying  on  so  many  suits.  The 
burden  is  upon  the  plaintiff.  He  claims  S600  and  more,  damages. 
He  may  have  judgment  for  $400,  and  interest  thereon  from  the  date  of 
writ. 


WESTFIELD   v.   MAYO. 
Supreme  Judicial  Court  of  Massachusetts,  1877. 

[Reported  122  Mass.  100.] 

Tort  to  recover  the  amount  of  a  judgment  paid  by  the  plaintiff*  to 
Mary  J.  Hanchett  for  injuries  sustained  by  her  upon  a  highway  which 
the  plaintiff  was  l)ound  to  keep  in  repair;  and  also  $150,  the  expenses 
of  the  suit  in  which  that  judgment  was  recovered.  Hanchett  was  in- 
jured by  falhng  upon  loose  bricks  which  the  defendant  had  negligently 
left  in  the  highway.^ 

Lord,  J.  .  .  .  The  remaining  question  in  this  case  is,  whether  the  plain- 
tiff shall  recover- the  amount  paid  as  counsel  fees  in  the  suit  against 
the  towm,  which,  it  is  agreed,  are  reasonable,  if  in  law  they  are  to  be 
allowed.  The  defendant  was  notified  by  the  town  of  the  pendency  of 
the  original  suit,  and  was  requested  to  defend  it,  which  he  declined  to  do. 

The  difficulty  is  not  in  stating  the  rule  of  damages,  but  in  deter- 
mining whether  in  the  particular  case  the  damages  claimed  are  within 
the  rule.  Natural  and  necessary  consequences  are  subjects  of  dam- 
ages; remote,  uncertain  and  contingent  consequences  are  not.  Whether 
counsel  fees  are  natural  and  necessary,  or  remote  and  contingent,  in 
the  particular  case,  we  think  may  be  determined  upon  satisfactory 
principles;  and,  as  a  general  rule,  when  a  party  is  called  upon  to  de- 
fend a  suit,  founded  upon  a  WTong,  for  which  he  is  held  responsible  in 
law  without  misfeasance  on  his  part,  but  because  of  the  "WTongful  act 
of  another,  against  whom  he  has  a  remedy  over,  counsel  fees  are  the 
natural  and  reasonably  necessary  consequence  of  the  wTongful  act  of 
the  other,  if  he  has  notified  the  other  to  appear  and  defend  the  suit. 
When,  however,  the  claim  against  him  is  upon  his  o^vn  contract,  or 
for  his  own  misfeasance,  though  he  may  have  a  remedy  against  another 

I  This  short  statement  is  substituted  for  that  of  the  Reporter.  —  Ed. 


838  WESTFIELD   V.    MAYO.  [CHAP.    VI. 

and  the  damages  recoverable  may  be  the  same  as  the  amount  of  the 
judgment  recovered  against  himself,  counsel  fees  paid  in  defence  of 
the  suit  against  himself  are  not  recoverable. 

The  decision  in  Reggio  v.  Braggiotti,  7  Cush.  166,  is  adverse  to  the 
allowance  of  counsel  fees,  as  falhng  within  the  latter  class.  In  that 
case  the  plaintiff  sold  to  Henshaw,  Ward  &  Co.  an  article  witli  a 
warranty  that  it  Avas  kno\\Ti  in  commerce  as  opium;  and  Henshaw, 
Ward  &  Co.  recovered  damages  against  the  plaintiff  upon  his  war- 
ranty. They,  having  made  the  warranty,  were  responsible  for  dam- 
ages resulting  from  the  breach  of  their  owti  contract.  The  defendant 
in  that  case  had  made  a  similar  warranty  to  the  plaintiffs,  and  although 
they  were  liable  to  him  upon  that  warranty,  it  was  held  that  they  were 
not  liable  for  counsel  fees  paid  in  defending  their  oAvn  warranty.  Al- 
though the  reasons  for  that  decision,  which  are  very  briefly  given,  are 
not  the  same  which  we  now  assign  in  support  of  it,  the  decision  itself 
is  sustained  by  the  authorities. 

In  Baxendale  v.  London,  Chatham  &  Dover  Railway,  L.  R.  10  Ex. 
35,  it  appeared  that  one  Harding  had  contracted  with  the  plaintiff  to 
convey  certain  valuable  pictures  from  London  to  Paris.  The  plaintiff, 
by  another  contract,  agreed  with  the  defendant  for  the  carriage  by 
the  defenjlant  of  the  same  pictures  to  the  same  destination.  The  pic- 
tures were  damaged  in  the  transportation.  Harding  brought  his  action 
against  the  plaintiff  for  damage  to  the  pictures  upon  the  contract 
between  them  and  recovered.  The  plaintiff  then  brought  his  action 
against  the  defendant  for  breach  of  its  contract  with  him;  and  the 
defendant  denied  its  liability,  but  being  held  liable,  the  question  arose 
whether  counsel  fees  which  the  plaintiff  had  expended  in  defence  of 
Harding's  claim  upon  him  should  be  added  as  damages  to  the  amount 
recovered  by  Harding;  and  it  was  held  that  they  could  not  be. 

In  Fisher  v.  Val  de  Travers  Asphalte  Co.,  1  C.  P.  D.  511,  the  same 
result  was  reached.  In  that  case  the  plaintiff  made  a  contract  with  a 
tramway  company  to  construct  a  tramway  in  a  workmanlike  manner 
with  ^'al  de  Travers  asphalte  and  concrete,  and  to  keep  the  same  in 
good  order  for  twelve  months.  The  plaintiff  also  contracted  with  the 
defendant  to  construct  for  him  the  same  tramway  and  with  like  Avar- 
ranty.  The  plaintiff,  however,  did  not  make  the  contract  with  the 
defendant  to  construct  the  tramway  for  himself,  but  he  had  agreed  tp 
construct  it  for  the  IVIetropolitan  Tramway  Company,  which  was  the 
owner  of  the  tramway.  One  Hicks  sustained  an  injury  by  reason  of 
the  defective  condition  of  the  way,  and  commenced  proceedings  against 
the  Metropolitan  Tramway  Company  for  damages,  and  the  Metro- 
politan Tramway  Company  notified  the  plaintiff,  and  the  plaintiff 
notified  the  defendant.  The  defendant  declined  to  interfere.  The 
plaintiff,  however,  took  upon  himself  the  defence  of  the  suit  against 
the  tramway  company,  and  adjusted  it;  and  the  settlement  was  found 
to  be  a  reasonable  and  proper  one.     In  his  action  against  the  de- 


SECT.    IV.]  WESTFIELD   V.   MAYO.  839 

fendant,  he  contended  that  his  counsel  fees  incurred  in  the  previous 
proceedings  should  be  added  to  the  amount  paid  to  Hicks.  Brett  and 
Lindley,  JJ.,  in  their  several  opinions,  felt  themselves  bound  by  the 
decision  in  Baxendale  v.  London,  Chatham  &  Dover  Railway,  above 
cited,  but  thought  that,  if  they  were  not  precluded  by  that  decision, 
they  should  have  great  difficulty  in  refusing  to  allow  counsel  fees  in 
addition  to  the  amount  paid  as  damages;  but  Lord  Coleridge,  C.  J., 
while  holding  that  that  decision  was  conclusive,  was  not  prepared  to 
say  that  it  was  not  right  in  principle.  And  he  uses  this  very  suggestive 
language:  "The  tramway  company  contract  with  Fisher;  Fisher  con- 
tracts with  the  defendants,  and  the  claim  of  Hicks  arises  from  negli- 
gence of  the  latter.  Are  the  defendants  to  be  liable  to  three  sets  of 
costs,  because  the  actions  may  have  been  reasonably  defended?  If 
they  are,  the  consequences  may  be  serious.  If  not,  at  which  link  of 
the  chain  are  the  costs  to  drop  out?" 

Followang  this  suggestion,  if,  in  the  case  of  Reggio  v.  Braggiotti, 
there  had  been  ten  successive  sales  instead  of  two,  and  each  wath  the 
same  implied  warranty,  and  successive  suits  had  been  brought  by  the 
ten  successive  purchasers,  each  against  his  warrantor,  would  the  first 
seller  be  liable  for  such  accumulation  of  counsel  fees  upon  his  contract 
of  warranty?  If  not,  in  the  pertinent  language  just  quoted,  "  at  which 
link  of  the  chain  are  the  costs  to  drop  out?"  In  each  of  these  cases,  it 
will  be  observed  that  the  counsel  fees  were  paid  in  defending  a  suit 
upon  the  party's  own  contract. 

In  the  present  case,  the  plaintiff  was  not  compelled  to  incur  the 
counsel  fees  by  reason  of  any  misfeasance,  or  of  any  contract  of  its 
own,  but  was  made  immediately  liable  by  reason  of  the  wrongdoing  of 
the  defendant.  There  seems  therefore  to  be  no  ground,  in  principle, 
by  which  it  should  be  precluded  from  recovering  as  a  part  of  its  dam- 
ages the  expenses  reasonably  and  properly  incurred  in  consequence  of 
the  WTongdoing  of  the  defendant.  Within  this  rule  a  master,  who  is 
immediately  responsible  for  the  WTongful  acts  of  a  servant,  though 
there  is  no  misfeasance  on  his  part,  might  recover  against  such  servant 
not  only  the  amount  of  the  judgment  recovered  against  him,  but  his 
reasonable  expenses  including  counsel  fees,  if  notified  to  defend  the 
suit.  It  may  be  said  in  that  case,  as  in  this,  that  there  may  be  a 
technical  misfeasance,  or  rather  nonfeasance,  in  not  guarding  more 
carefully  the  conduct  of  the  servant,  or  in  watching  for  obstructions  in 
the  street;  but  no  negligence  is  necessary  to  be  proved  in  either  case 
as  matter  of  fact;  the  party  is  directly  liable  because  of  the  WTong  of 
another,  whatever  diligence  he  may  have  himself  exercised.  It  does 
not,  however,  apply  to  cases  where  one  is  defending  his  own  WTong  or 
his  own  contract,  although  another  may  be  responsible  to  him. 

In  Lowell  v.  Boston  &  Lowell  Railroad,  23  Pick.  24,  the  question  was 
raised  whether  the  defendant  was  liable  over  to  the  plaintiff"  for  dam- 
ages which  had  been  recovered  against  the  plaintiff  by  reason  of  a 


840  ^  WESTFIELD    V.    MAYO.  [CHAP.    VI. 

defective  highway,  which  defect  was  caused  by  the  defendant.  That 
is  the  leading  case  in  this  Commonwealth,  in  which  it  is  settled  that 
the  municipal  corporation  which  is  bound  by  law  to  keep  its  roads 
safe  and  convenient  is  not  in  pari  delicto  with  the  party  by  whose 
direct  act  the  defect  exists.  That  decision  is  based  upon  the  principle 
that  the  keeping  of  roads  safe  and  convenient  is  a  corporate  obligation 
imposed  by  law;  and  although  it  does  not  in  words  declare  that  it  is 
immaterial  whether  there  was  negligence  in  fact,  the  existence  of  the 
defect  during  the  statute  time  is  recognized  as,  of  itself,  conclusively 
establishing  the  legal  liability  of  the  municipality.  In  that  case,  the 
question  was  directly  raised  whether  the  costs  of  suit,  including  the 
reasonable  counsel  fees,  were  recoverable.  In  the  discussion  by  Mr. 
Justice  Wilde,  who  delivered  the  opinion,  no  distinction  was  made 
between  taxable  costs  and  reasonable  counsel  fees.  It  was  decided 
that  neither  taxable  costs  nor  counsel  fees  could  be  recovered.  We 
think,  however,  that  the  whole  course  of  reasoning  is  in  conformity 
with  the  views  which  we  adopt.  At  the  time  the  cause  of  action  ac- 
crued (1832)  and  when  the  judgment  was  entered  (1839)  if  damages 
were  recovered  for  injury  sustained  because  of  a  defect  in  a  way, 
which  had  existed  for  the  space  of  twenty-four  hours,  and  after  the 
town  had  had  reasonable  notice  of  the  defect,  it  was  the  duty  of  the 
court  to  enter  judgment  against  the  defendant  for  double  the  amount 
of  the  sum  returned  as  damages  by  the  jury.  St.  1786,  c.  81,  §  7; 
Rev.  Sts.  c.  25,  §  22.  The  court  says  in  the  opinion,  "The  ground  of 
defence  taken  by  the  town  in  the  former  action  is  well  remembered, 
although  it  does  not  appear  in  the  present  report."  That  defence  is 
thus  stated :  "  The  ground  of  defence  in  that  action  on  the  part  of  the 
town  was,  that  they  had  no  sufficient  notice  of  the  defect  in  the  road, 
and  that  the  remedy  for  the  injured  party  was  against  the  present 
defendants.  The  suit  therefore  was  not  defended  at  the  request  of 
the  defendants  or  for  their  benefit;  at  least,  no  such  request  has  been 
proved."  And  the  court  adds:  "If  the  claim  of  the  injured  parties 
had  been  made  on  the  defendants,  or  if  they  had  had  notice  that  the 
town  defended  the  suit  against  them  in  behalf  of  the  defendants,  they 
might  have  compromised  the  claim."  The  exact  point  of  the  decision 
in  this  respect  was  that  the  town  was  defending,  to  a  great  extent, 
against  its  own  obligation,  for  which  the  defendants  were  not  respon- 
sible either  to  them  or  to  the  injured  party.  It  was  the  special  particu- 
lar legal  obligation  of  the  defendants  themselves,  which  they  defended 
against,  and  not  simply  the  act  of  the  defendants.  The  language  of 
the  court  immediately  preceding  the  question  of  liability  for  costs  is: 
"  They  are  not,  however,  entitled  to  a  full  indemnity,  but  only  to  the 
extent  of  single  damages.  To  this  extent  only,  were  the  defendants 
liable  to  the  parties  injured,  and  so  far  as  the  plaintiffs  have  been  held 
beyond  that  extent,  they  have  suiTered  from  their  own  neglect;  and 
whether  it  was  actual  or  constructive  is  immaterial.     The  damages 


SECT.  Y.]    BERXHARD  T.   ROCHESTER  GEKMAN  INSURANCE  CO.   841 

were  doubled  by  reason  of  the  neglect  of  the  town ;  and  although  there 
was,  in  fact,  no  actual  negligence,  yet  constructive  negligence  was 
>suflficient  to  maintain  the  action  against  them;  and  they  must  be  re- 
sponsible for  the  increased  amount  of  damages,  and  cannot  throw  the 
burden  on  the  defendants." 

Throughout  the  whole  reasoning  of  that  case,  we  think  the  principle 
which  we  adopt,  though  not  stated  in  terms,  is  clearly  recognized.  It 
is  simply  this :  If  a  party  is  obliged  to  defend  against  the  act  of  another, 
against  whom  he  has  a  remedy  over,  and  defends  solely  and  exclusively 
the  act  of  such  other  party,  and  is  compelled  to  defend  no  misfeasance 
of  his  owTi,  he  may  notify  such  party  of  the  pendency  of  the  suit  and 
may  call  upon  him  to  defend  it;  if  he  fails  to  defend,  then,  if  liable  over, 
he  is  liable  not  only  for  the  amount  of  damages  recovered,  but  for  all 
reasonable  and  necessary  expenses  incurred  in  such  defence.  And 
this  rule,  while  consistent  with  legal  principles,  is  sanctioned  by  the 
highest  equitable  considerations.  If  the  party  ultimately  liable  for 
his  exclusive  WTongdoing  has  notice  that  an  intermediate  party  is 
sued  for  the  wrong  done  by  him,  it  is  right,  legallj'  and  equitably,  that 
he  take  upon  himself  at  once  the  defence  of  his  own  act,  thereby  set- 
tling the  whole  matter  in  a  single  suit;  if  he  requires  the  intermediate 
party  to  defend,  there  is  no  rule  of  law  or  of  morals  which  should  re- 
lieve him  from  the  consequences  of  his  additional  neglect  of  duty. 
Upon  the  whole,  therefore,  we  are  entirely  satisfied  that  the  exceptions 
must  be  overruled  and  judgment  entered  for  the  plaintiff  for  the 
larger  sum,  which  includes  what,  it  is  agreed,  are  reasonable  counsel  fees. 

Exceptions  overruled. 


SECTION    V. 

Interest. 

BERNHARD   v.   ROCHESTER  GERMAN  INSURANCE   CO. 
Supreme  Court  of  Connecticut,  1906. 

[Reported  79  Conn.  388.] 

Prentice,  J.  The  defendant  issued  its  policies  to  the  plaintiff  upon 
his  dwelling-house  and  its  contents.  A  fire  occurred.  The  insured  is 
now  seeking  to  recover  upon  the  policies  on  account  of  the  loss  thereby 
occasioned.^  .  .  . 

In  rendering  judgment  the  court  inckided  interest  from  July  1st,  1901 , 
being  the  date  of  the  defendant's  repudiation  of  liability,  upon  the 
amount  of  the  loss  upon  the  personal  property,  but  none  upon  the 

1  The  learned  judge  held  that  the  court  below  was  right  in  giving  judgment  for  the 
plaintiff.  — Ed. 


842      BERNHARD   1}.   ROCHESTER  GERMAN   INSURANCE  CO.    [CHAP.  VI. 

amount  of  the  building  loss.  The  defendant  complains  of  the  inclusion 
of  this  interest.  The  court  made  its  distinction  between  the  two  losses, 
upon  the  ground  that  the  latter  loss  was  not  definitely  ascertainable 
until  it  was  determined  by  the  judgment  of  the  court,  while  there  was 
no  serious  controversy  between  the  parties  as  to  the  amount  of  the 
former. 

There  was  no  error  in  the  action  of  the  court;  neither  would  there 
have  been  had  interest  upon  the  other  loss  been  included.     By  the  f 

inclusion  of  interest  upon  the  amounts  which  the  policies  obligated 
the  defendant  to  pay,  from  the  time  when  it  refused  recognition  of  any 
liability  and  put  an  end  to  the  prescribed  processes  of  adjustment,  and 
by  such  inclusion  only,  could  the  court  compensate  the  plaintiff  for 
what  he  had  suffered  by  reason  of  the  delay  resulting  from  the  defend- 
ant's wrongful  act.  "Interest  by  our  law  is  allowed  on  the  groiind  of 
some  contract  express  or  implied  to  pay  it,  or  as  damage  for  the  breach 
of  some  contract,  or  the  violation  of  some  duty."  Selleck  v.  French, 
1  Conn.  32,  33.  This  court  has  never  adopted  for  general  application 
the  arbitrary  rule  that  interest  upon  unliquidated  demands  will  not  be 
allowed  as  damages.  On  the  contrary,  we  have  long  and  repeatedly 
held  that  in  certain  classes  of  cases  such  an  element  of  damage  was  one 
to  be  properly  taken  into  account.  White  v.  Webb,  15  Conn.  302,  305; 
Clark  V.  Whitaker,  19  id.  319;  Cook  v.  Loomis,  26  id.  483;  Oviatt  v. 
Pond,  29  id.  479,  485;  Clark  v.  Clark,  46  id.  586,  590;  Union  Hardware 
Co.  V.  Plume  &  Atwood  Mfg.  Co.,  58  id.  219,  222,  20  Atl.  455;  Regan  v. 
New  York  &  N.  E.  R.  Co.,  60  Conn.  124,  142,  22  Atl.  503;  Healy  v. 
Fallon,  69  Conn.  228,  235,  37  Atl.  495;  New  York,  N.  H.  &  H.  R. 
Co.  V.  Ansonia  L.  &  W.  P.  Co.,  72  Conn.  703,  705,  46  Atl.  157. 

The  purpose  sought  in  awarding  damages  other  than  vindictive  is  to 
make  a  fair  compensation  to  one  who  has  suffered  an  injury.  Barker  v. 
Lewis  Storage  &  Transfer  Co.,  78  Conn.  198,  200,  61  Atl.  363.  Courts 
are  more  and  more  coming  to  recognize  that  a  rule  forbidding  an  allow- 
ance for  interest  upon  unliquidated  damages  is  one  well  calculated  to 
defeat  that  purpose  in  many  cases,  and  that  no  right  reason  exists  for 
drawing  an  arbitrary  distinction  between  liquidated  and  unliquidated 
damages.  1  Sedg.  on  Damages  (8th  ed.),  §§  299,  300,  312,  315.  There 
are  actions  to  which  the  suggested  rule  is  applicable.  Regan  v.  New 
York  &  N.  E.  R.  Co.,  60  Conn.  124,  142,  22  Atl.  503.  Others,  however, 
present  conditions  where,  without  an  allowance  for  interest,  although 
the  demand  may  be  unliquidated,  fair  compensation  for  the  injury 
done  would  not  be  accorded  and  justice  would  thus  be  denied.  The 
determination  of  whether  or  not  interest  is  to  be  recognized  as  a  proper 
element  of  damage,  is  one  to  be  made  in  view  of  the  demands  of  justice 
rather  than  tlirough  the  application  of  any  arbitrary  rule.  New  York, 
N.  H.  &  H.  R.  Co.  V.  Ansonia  L.  &  W.  P.  Co.,  72  Conn.  703,  705, 
46  Atl.  157. 

There  is  no  error. 


SECT,  v.]  SLOAN  V.    BAIRD.  843 


SLOAN  V.   BAIRD. 

Court  of  Appeals,  New  York,  1906. 

[Reported  162  A^".  Y.  327.] 

Haight,  J.  The  defendant  was  the  owner  of  certain  lands,  buildings 
and  machinery  at  Trenton,  New  Jersey,  known  as  the  plant  of  the 
Hamilton  Rubber  Company.  She  entered  into  a  certain  contract  with 
the  plaintiff  by  which  she  agreed  to  sell  and  convey  the  pro'^erty  to 
him  within  a  time  specified  for  the  sum  of  fifty  thousand  dollars 
($50,000).  At  the  time  specified  the  plaintiff  tendered  performance, 
but  the  defendant  refused  to  convey  the  property  to  him;  but  instead, 
conveyed  it  to  one  Skrim.  This  action  was  brought  to  recover  the 
damages  which  the  plaintiff  sustained  by  reason  of  the  defendant's 
refusal  to  perform  her  contract. 

The  case  was  tried  before  a  referee,  who  awarded  the  plaintiff  fifteen 
thousand  five  hundred  dollars  ($15,500)  damages,  with  interest  thereon 
from  the  date  of  the  breach  of  the  agreement.  The  Appellate  Division 
modified  the  judgment  by  deducting  from  the  damages  awarded  by 
the  referee  the  sum  of  two  thousand  eight  hundred  fift;\'-three  dollars 
and  fifty-four  cents  ($2,853.54)  as  interest,  and  also  by  deducting  the 
sum  of  one  hundred  forty-two  dollars  and  sixty-eight  cents  ($142.68) 
from  the  amount  awarded  as  extra  allowance  in  addition  to  costs,  and 
as  so  modified  the  judgment  was  unanimously  affirmed. 

We  have  examined  the  exceptions  raised  by  the  defendant's  appeal 
and  are  of  the  opinion  that  the  questions  involved  were  properly  dis- 
posed of  by  the  Appellate  Division.  The  only  question  which  we  shall 
here  discuss  arises  upon  the  plaintiff's  appeal,  in  which  he  claims  that 
the  Appellate  Division  improperly  modified  the  judgment  by  deduct- 
ing from  the  sum  awarded  the  interest  from  the  time  of  the  breach  of 
the  contract. 

It  is  true  that  much  has  been  wT-itten  upon  the  subject  of  awarding 
interest,  and  that  the  authorities  are  not  in  entire  harmony.  But  we 
must  regard  the  question  here  under  consideration  as  settled  by  our 
recent  decision  in  the  case  of  Gray  v.  Central  R.  R.  Co.  of  N.  J.  (157 
N.  Y.  483).  In  that  case  the  rule  adopted  by  Earl,  J.,  in  White  v. 
Miller  (78  N.  Y.  393)  and  by  Bradley,  J.,  in  Mansfield  v.  N.  Y.  C.  & 
H.  R.  R.  R.  Co.  (114  N.  Y.  331)  was  approved  and  followed.  The 
rule  as  stated  in  these  cases  is  to  the  effect  that  in  an  action  to  recover 
unliquidated  damages  for  a  breach  of  a  contract,  interest  is  not  allow- 
able unless  there  is  an  established  market  value  of  the  property,  or 
means  accessible  to  the  party  sought  to  be  charged  of  ascertaining  by 
computation,  or  otherwise,  the  amount  to  which  the  plaintiff  is  en- 
titled.    (See  also,  MacMaster  v.  State,  108  N.  Y.  542.)    The  damages 


844  COCHRAN  V.    BOSTON.  [CHAP.   VI. 

in  this  case  were  the  difference  between  the  amount  which  the  plaintiff 
agreed  to  pay  and  the  vahie  of  the  property.  The  property  consisted 
of  a  parcel  of  land  upon  which  there  were  buildings  inclosing  a  quantity 
of  machinery  used  in  the  manufacture  of  rubber.  The  factory  had 
been  operated  for  a  number  of  years,  but  at  the  time  of  the  contract 
it  stood  idle  and  unused.  The  property  was  of  a  special  kind  fitted  for 
a  peculiar  business,  and  its  value  depended  largely  upon  its  location, 
condition  and  the  demand  for  the  goods  which  it  was  designed  to 
manufacture.  It  appears  that  the  machinery  constituted  the  chief 
value  of  the  property,  and  its  long  use,  of  necessity,  produced  a  de- 
terioration and  impaired  its  value.  The  expert  witnesses  called  upon 
the  question  of  the  value  of  the  property  widely  differed  in  their  judg- 
ments. With  reference  to  the  machinery  their  estimates  ranged  from 
five  thousand  dollars  to  forty-eight  thousand  dollars,  and  upon  the 
whole  property  from  thirty-five  thousand  dollars  to  one  hundred 
thousand  dollars.  It  is  thus  apparent  that  the  damages  sought  to  be 
recovered  were  not  only  unliquidated,  but  that  no  means  were  accessible 
to  the  defendant  of  ascertaining  the  amount  M'hich  might  be  awarded 
by  a  jury  and  she  called  upon  to  pay.  But  it  is  said  there  was  a 
market  value.  If  so,  what  was  it?  Was  it  thirty-five  thousand  dollars 
or  one  hundred  thousand  dollars?  The  market  value  of  property  is 
established  when  other  property  of  the  same  kind  has  been  the  subject 
of  purchase  or  sale  to  so  great  an  extent  and  in  so  many  instances 
that  the  value  becomes  fixed.  Bouvier,  in  his  Law  Dictionary,  defines 
market  value  as  a  price  established  by  public  sales,  or  sales  in  the 
way  of  ordinary  business,  as  of  merchandise.  The  Century  Dictionar\, 
defines  market  price  as  being  the  current  price.  (See  also,  Murry  v. 
Stanton,  99  Mass.  345,  348.)  While  evidence  was  given  by  experts 
showing  the  value  of  the  property,  there  is  no  evidence  showang  that 
this  property  had  a  market  value  established  and  fixed  by  which  the 
defendant  could  determine  the  damages  which  the  plaintiff  was  en- 
titled to  recover  or  compute  the  interest  thereon,  and  there  is  no  find- 
ing by  the  referee  that  the  property  had  a  market  value. 

The  judgment  should  be  affirmed,  without  costs  to  either  party. 


COCHRAN  V.   BOSTON. 
Supreme  Judicial  Court  of  Massachusetts,  1912. 

[Reported  211  Mass.  171.] 

RuGG,  C.  J.  This  is  an  action  for  personal  injuries  received  by  the 
plaintiff  while  a  traveller  from  a  defect  in  a  higliAvay.  The  only  question 
to  be  decided  is  whether  in  such  an  action  the  plaintiff  is  entitled  to  an 
instruction  to  the  effect  that  in  ascertaining  damages  the  jury  have  a 


SECT,    v.]  COCHRAN  V.    BOSTON.  845 

right  to  add  to  the  fair  compensation  interest  by  reason  of  delay.  The 
plaintiff  relies  on  Frazer  r.  Bigelow  Carpet  Co.,  141  Mass.  126,  where  it 
was  held  that  in  an  action  for  injury  to  property  the  jury,  in  their 
discretion,  and  as  incident  to  determining  the  amount  of  the  original 
loss,  may  consider  the  delay  caused  by  the  defendant.  This  case  has 
been  followed  in  other  cases  of  tortious  injury  to  property.  Ainsworth 
V.  Lakin,  180  Mass.  397.  Atwood  v.  Boston  Forwarding  &  Transfer 
Co.,  185  Mass.  557.  Peabody  v.  New  York,  New  Haven,  &  Hartford 
Railroad,  187  Mass.  489,  493.  The  rule  in  substance  adopted  in  these 
cases  is  that,  while  interest  is  not  allowed  as  matter  of  right,  the  time 
for  which  the  plaintiff  has  been  kept'  out  of  the  use  of  his  property  or 
the  damage  occasioned  by  the  wrong  of  the  defendant  may  be  con- 
sidered and  an  amount  not  exceeding  the  legal  rate  of  interest  may  be 
included  therefor  in  the  verdict  if  necessary  in  order  to  give  adequate 
compensation.  This  principle  is  applicable  to  cases  where  there  has 
been  a  definite  injiu-y  to  specific  property.  The  reason  is  that  stated 
by  Chief  Justice  Shaw,  in  Parks  v.  Boston,  15  Pick.  198,  in  laying  doAVTi 
the  rule  for  the  computation  of  interest  where  property  is  taken  by 
eminent  domain.  The  injury  occurs  and  is  finished  in  its  results  on  a 
particular  daj',  and  can  then  best  be  ascertained,  and  exact  justice 
would  be  done  by  a  contemporaneous  determination  of  the  loss.  An 
action  for  personal  injuries  is  essentially  different  in  its  nature.  The 
damages  are  not  complete  and  ended  on  the  day  of  the  accident,  but 
continue  for  a  greater  or  less  period  thereafter. 

The  extent  and  magnitude  of  the  injury  are  not  infrequently  un- 
appreciated and  incapable  of  reasonable  ascertainment  on  the  day  it  is 
received.  Its  degree  of  permanence  is  often  deceptive  at  the  first, 
and  commonly  the  determination  of  conditions  requisite  for  recovery 
is  materially  assisted  by  the  perspective  of  time.  The  most  helpful 
aids  in  learning  the  nature  and  degree  of  actual  injury  may  be  events 
occurring  after  the  event  complained  of.  There  is  no  fixed  standard 
by  which  the  compensation  to  be  awarded  can  be  measured.  Its 
general  rules  have  been  stated  many  times.  The  sum  of  money  fixed 
upon  must  be  such  as  fairly  compensates  the  injured  person  for  the 
loss  of  time,  the  physical  pain  and  the  mental  suffering,  both  that 
undergone  in  the  past  and  likely  to  occur  in  the  future,  and  also  money 
reasonably  expended  and  to  be  expended  in  assuaging  pain  and  in 
restoration  to  health.  Elements  that  are  past  and  also  those  which 
are  to  come  must  be  considered.  Most  of  them  are  not  capable  of 
mathematical  computation.  They  can  be  settled  only  by  the  sound 
judgment  and  conscience  of  the  tribunal  by  which  they  are  assessed, 
and  they  are  peculiarly  within  its  province.  The  damages  are  to  be 
determined,  moreover,  as  of  the  day  of  the  trial.  It  is  apparent  that 
interest  or  considerations  akin  to  interest  have  no  place  in  an  inquiry 
of  this  sort.  Interest  is  compensation  for  the  use  of  money  which  is 
due.     But  the  money  which  the  wrongdoer  is  required  by  law  to  pay 


846  EATON  V.   BOISSONNAULT.  [CHAP.   VI, 

for  the  future  suffering,  expense  or  loss  of  time  of  one  whom  he  has  in- 
jured is  not  due  until  judgment  is  made  up.  It  is  not  a  debt  and  does 
not  become  a  definite  obligation  until  a  verdict  or  finding  has  been 
finally  entered.  It  is  composed  of  divers  elements,  together  making 
up  a  gross  sima,  many  of  which  may  not  have  sprung  into  being  on  the 
day  when  the  tort  was  committed,  although  directly  traceable  to  it  as 
a  cause.  If  interest  were  properly  chargeable  on  that  which  has  al- 
ready accrued,  discount  should  be  allowed  upon  that  which  relates  to 
the  future.  Such  a  method  of  computing  damages  would  be  wholly 
impracticable.  The  amount  of  damages  recoverable  in  actions  of  this 
sort,  as  well  as  those  under  certain  branches  of  the  employers'  liability 
act  and  under  penal  statutes  for  causing  death,  is  limited  to  definite 
amounts.  Plainly  no  interest  can  be  allowed  in  instances  of  maximum 
injury. 

It  has  been  the  practice  in  this  Commonwealth  not  to  extend  the 
rule  of  Frazer  v.  Bigelow  Carpet  Co.,  supra,  to  cases  of  this  sort.  Al- 
though the  custom  has  been  firmly  established  and  continuous  not  to 
allow  enhancement  of  damages  by  reason  of  delay,  and  pei"sonal  injury 
actions  have  been  very  numerous  for  many  years,  the  question  has 
never  been  presented  before  for  consideration.  The  groiuids  against 
such  an  extension  of  allowance  of  interest  appear  conclusive.  This 
view  is  supported  by  the  great  weight  of  authority  in  other  jurisdic- 
tions. Railroad  v.  Wallace,  91  Tenn.  35.  Burrows  v.  Lownsdale,  133 
Fed.  Rep.  250.  Jacobson  v.  United  States  Gypsum  Co.,  150  Iowa,  330, 
339.  Arkansas  &  Louisiana  Railroad  v.  Stroude,  82  Ark.  117,  127. 
Fell  X.  Union  Pacific  Railway,  32  Utah,  101,  111.  Ratteree  v.  Chap- 
man, 79  Ga.  574,  581.  Sargent  x.  Hampden,  38  Maine,  581.  Western 
&  Atlantic  Railroad  v.  Young,  81  Ga.  397.  Missouri  &  Kansas  Tele- 
phone Co.  V.  Vandervort,  71  Kans.  101.  Pittsburg  Southern  Railway 
V.  Taylor,  104  Penn.  St.  306.  Texas  &  New  Orleans  Railroad  v.  Carr, 
91  Texas,  332.  Bommarius  i\  New  Orleans  Railway  &  Light  Co.,  123 
La.  615.  See  also  Tilglmian  v.  Proctor,  125  U.  S.  136,  161;  Shafer 
Fruit  &  Cold  Storage  Co.  v.  Upton  Cold  Storage  Co.,  133  App.  Div. 
(N.  Y.)  796. 

Exceptions  overruled. 


EATON  V.   BOISSONNAULT. 
Supreme  Judicial  Court  of  Maine,  1877. 

[Reported  67  Me.  540.] 

Walton,  J.  The  question  is  what  rate  of  interest  shall  be  allowed 
on  notes  after  they  have  matured. 

When  it  is  expressly  stated  in  a  note  that  if  it  is  not  paid  at  maturity, 
it  shall  thereafter  bear  interest  at  a  rate  named,  the  rate  named  is 


SECT,   v.]  EATON  V.   BOISSONNAULT.  847 

recoverable,  although  it  is  much  larger  than  the  usual  or  statutory 
rate.    So  held  in  Capen  v.  Crowell,  6G  Maine,  282. 

When  a  note  is  made  payable  at  a  future  day,  with  interest  at  the 
rate  of  three  per  cent  per  annum,  and  nothing  is  said  therein  about  the 
rate  of  interest  which  it  shall  draw  thereafter,  if  not  paid  at  matu- 
rity, it  will  draw  the  interest  named  till  maturity,  and  after  that  the 
usual  or  statutory  rate.  So  held  in  Ludwick  v.  Huntzinger,  5  Watts  & 
Serg.  51. 

A  note  payable  at  a  future  day,  with  interest  at  two  per  cent  a 
month,  in  which  nothing  is  said  about  the  rate  of  interest  after  maturity', 
will  draw  that  rate  of  interest  till  the  note  matures,  and  after  that  only 
the  usual  or  statutory  rate.  So  held  in  Brewster  v.  Wakefield,  22 
Howard,  118,  and  in  Burnhisel  v.  Firman,  22  Wall.  170. 

The  same  rule  was  acted  upon  in  the  House  of  Lords  in  England  in  a 
recent  case.    Cook  v.  Fowler,  L.  R.  7  H.  L.  27. 

The  reason  given  by  Lord  Selborne,  in  the  case  last  cited,  is  that 
interest  for  the  delay  of  pa^Tnent,  2)ost  diem,  is  not  given  on  the  principle 
of  implied  contract,  but  as  damages  for  a  breach  of  contract;  that  while 
it  might  be  reasonable,  under  some  circumstances,  and  the  debtor 
might  be  very  willing  to  pay  five  per  cent  per  month  for  a  very  short 
time,  it  would  by  no  means  follow  that  it  would  be  reasonable,  or  that 
the  debtor  would  be  willing  to  pay,  at  the  same  i*ate,  if,  for  some  unfore- 
seen cause,  pa^Tnent  of  the  note  should  be  delayed  a  considerable 
length  of  time. 

Similar  views  were  expressed  by  Chief  Justice  Taney,  in  Brewster  v. 
Wakefield,  22  Howard,  118.  He  says  that  when  the  note  is  entirely 
silent  as  to  the  rate  of  interest  thereafter,  if  it  is  not  paid  at  maturity, 
the  creditor  is  entitled  to  interest  after  that  time  by  operation  of  law 
and  not  by  virtue  of  any  promise  which  the  debtor  has  made;  that  if 
the  right  to  interest  depended  upon  the  contract,  the  holder  would  be 
entitled  to  no  interest  whatever  after  the  day  of  pavTnent. 

In  a  recent  case  in  Massachusetts,  the  court  held  that  when  a  re- 
covery is  had  upon  a  note  bearing  ten  per  cent  interest,  the  plaintiff 
is  entitled  to  interest  at  the  same  rate  till  the  time  of  verdict.  Brannon 
1).  Hursell,  112  Mass.  63.  The  reason  given  is  that  "the  plaintiff 
recovers  interest,  both  before  and  after  the  note  matures,  by  virtue  of 
the  contract,  as  an  incident  or  part  of  the  debt,  and  is  entitled  to  the 
rate  fixed  by  the  contract."  This  reasoning  is  at  variance  with  the 
reasoning  in  the  House  of  Lords  in  the  case  cited ;  and  with  the  reasoning 
of  the  Supreme  Court  of  the  United  States,  in  the  cases  cited ;  and  with 
the  reasoning  of  the  Massachusetts  court  itself,  in  Ayer  v.  Tilden,  15 
Gray,  178.  It  is  there  said  that  the  interest  after  maturity  "is  not  a 
sum  due  by  the  contract ;  that  it  is  given  as  damages  for  the  breach  of  the 
contract,  and  must  follow  the  rule  in  force  within  the  jurisdiction  where 
judgment  is  recovered." 

We  think  the  rule  laid  down  by  the  Supreme  Court  of  the  United 


848  BOWMAN   V,    NEELY.  [CIL\P.    VI. 

States,  and  by  the  House  of  Lords  in  England,  is  the  correct  one.  It  has 
been  followed  in  Connecticut.  Hubbard  v.  Callahan,  42  Conn.  524. 
And  in  Rhode  Island.  Pierce  v.  Swanpoint  Cemetery,  10  R.  I.  227. 
In  the  last  case  the  court  say  that  if  the  parties  to  the  note  or  other 
contract  for  the  payment  of  money,  intend  that  it  shall  carry  the 
stipulated  rate  of  interest  till  paid,  they  can  easily  entitle  themselves 
to  it,  by  saying  so,  in  so  many  words.  The  practice  in  this  state  has 
been  in  accordance  with  the  rule  laid  down  by  the  Supreme  Court  of  the 
United  States,  in  Brewster  v.  Wakefield,  22  Howard,  118;  and  we  see  no 
reason  for  departing  from  it. 

Exceptions  overruled. 


BOWMAN  V.  NEELY. 
Supreme  Court  of  Illinois,  1894. 

[Reported  151  III.  37.] 

Baker,  J.  It  appears  that  appellee's  judgment  for  S4,748.52  against 
appellant  included  the  principal  of  the  note  for  $3,481.31,  less  the 
proper  deductions  for  the  several  payments,  as  of  their  respective 
dates,  and  interest  calculated  at  the  rate  of  ten  percentum  per  annum, 
simple  interest.  The  note  provided,  that  interest  should  be  paid  on 
the  principal  at  the  rate  of  ten  per  cent  per  anntun  from  date,  and  that 
it  should  be  payable  annually,  and  if  not  so  paid,  should  become 
principal,  and  bear  the  same  rate  of  interest  as  the  original  principal. 
Appellant  contends  that  this  provision  in  the  note  rendered  the  con- 
tract usurious,  and  that  it  was  error  to  allow  appellee  any  interest 
whatever,  that  the  judgment  should  have  been  only  for  the  principal 
of  the  note,  less  the  amounts  of  the  several  payments  endorsed  thereon. 

In  our  opinion,  the  case  at  bar  does  not  come  within  the  purview 
of  Sec.  6,  Ch.  74,  of  Rev.  St.  of  1874.  The  decisions  of  this  court 
bearing  on  this  question  may  be  divided  into  two  general  classes: 
First,  where  a  greater  rate  of  interest  is  sought  to  be  recovered  than 
is  allowed  by  law.  This  is  usury,  and,  in  such  a  case,  the  statute  pro- 
vides that  the  creditor  shall  forfeit  his  interest,  and  shall  recover  only 
the  principal  of  the  debt.  And  second,  where  interest  upon  interest, 
or  compound  interest,  is  sought  to  be  recovered;  in  that  case,  if  no 
more  than  the  legal  rate  of  interest  is  charged,  there  is  no  usury, 
within  the  meaning  of  our  statute.  From  motives  of  public  policy, 
however,  the  law  will  not  allow  the  recovery  of  compound  interest. 
There  are  but  two  exceptions  to  this  latter  rule:  First,  in  respect  to 
interest-bearing  coupons  attached  to  bonds  or  other  securities  for  the 
payment  of  money.  Such  coupons,  when  payable  to  bearer,  have,  by 
commercial  usage,  the  legal  effect  of  promissory  notes,  and  possess  the 


SECT,    v.]  AUROIL\   CITY   V.   WEST.  849 

attributes  of  negotiable  paper.  They  are  contracts  for  the  payment  of 
a  definite  sum  of  money  on  a  day  named,  and  pass,  by  commercial 
usage,  as  negotiable  paper.  The  interest  on  such  bonds,  however,  is 
not  compounded  indefinitely,  but  is  compounded  once  only.  These 
are  the  reasons  why  they  are  excepted  from  the  operation  of  the  gen- 
eral rule.  The  second  exception  is  in  cases  where,  the  interest  having 
become  due  and  remaining  unpaid,  the  debtor  then  agrees  to  ha^■e  the 
accrued  interest  added  to  the  principal  and  become  interest-bearing. 
Leonard  r.  Villars,  2.3  111.  377;  Haworth  v.  Huling,  87  id.  23;  Thayer  v. 
Mining  Company,  10.5  id.  553;  Bank  v.  Davis  et  al.,  108  id.  633;  Gil- 
more  V.  Bissell,  124  id.  488;  Bowman  v.  Neely,  137  id.  443. 

The  case  at  bar,  however,  does  not  come  within  either  of  these  ex- 
ceptions to  the  general  rule.  Here,  the  payment  of  the  interest  was 
not  secured  by  a  separate  and  independent  instrument,  as  in  the  case 
of  coupons  attached  to  bonds,  but  the  payment  of  the  principal  and 
interest  were  secured  by  one  and  the  same  paper ;  and  the  payment  of 
compound  interest  was  here  agreed  upon  in  advance,  and  not  after 
the  interest  had  accrued.  Appellee  was  entitled  to  recover  the  principal 
of  the  note  here  in  contro\ersy,  he  making  proper  deductions  for  all 
payments  made,  together  with  simple  interest  from  the  date  thereof, 
at  the  rate  of  ten  per  cent  per  annum,  the  rate  contracted  for  in  the 
note,  that  being  lawful  interest  at  the  time  the  instrument  was  executed. 

We  find  no  error  in  the  record.    The  judgment  is  affirmed. 

Judgment  affirmed. 


AURORA  CITY  v.   WEST. 
Supreme  Court  of  the  United  States,  1868. 

[Reported  7  Wall.  82.] 

Action  upon  certain  unpaid  coupons  on  bonds  issued  by  the  de- 
fendant city.^ 

Clifford,  J.  .  .  .  Exceptions  were  taken  to  the  ruling  of  the  court 
in  allowing  interest  upon  the  coupons,  and  the  bill  of  exceptions  states 
that  the  exception  of  the  defendants  was  allowed,  but  it  does  not  state 
what  amount  of  interest  was  included  in  the  judgment,  nor  give  the 
basis  on  which  it  was  computed.  Judging  from  the  amount  of  the 
sum  foynd  due,  it  is,  perhaps,  a  necessary  inference  that  interest  was 
allowed  on  each  coupon  from  the  time  it  fell  due  to  the  date  of  the 
judgment,  and  if  so,  the  finding  was  correct. 

Bonds  and  coupons  like  these,  by  universal  usage  and  consent, 
have  all  the  qualities  of  commercial  paper.  Coupons  are  written 
contracts  for  the  payment  of  a  definite  sum  of  money,  on  a  given  day, 

'  This  short  statement  is  substituted  for  that  of  the  Reporter.  —  Ed. 


SECTION   VI. 

Liquidated  Damages. 

KEMBLE  V.  FARREN. 
Court  of  Common  Pleas,  1829. 

[Reported  6  Bing.  141.] 

TiXDAL,  C.  J.^  This  is  a  rule  which  calls  upon  the  defendant  to 
show  cause  why  the  verdict,  which  has  been  entered  for  the  plaintiff 
for  £750,  should  not  be  increased  to  £1000. 

The  action  was  brought  upon  an  agreement  made  between  the 
plaintiff  and  the  defendant,  whereby  the  defendant  agreed  to  act  as  a 
principal  comedian  at  the  Theatre  Royal,  Covent  Garden,  during  the 
four  then  next  seasons,  commencing  October,  1828,  and  also  to  con- 
form in  all  things  to  the  usual  regulations  of  the  said  Theatre  Royal, 
Covent  Garden;  and  the  plaintiff  agreed  to  pay  the  defendant  £3  6s.  8d. 
every  night  on  which  the  theatre  should  be  open  for  theatrical  per- 
formances, during  the  next  four  seasons,  and  that  the  defendant 
should  be  allowed  one  benefit  night  during  each  season,  on  certain 
terms  therein  specified.  And  the  agreement  contained  a  clause,  that 
if  either  of  the  parties  should  neglect  or  refuse  to  fulfil  the  said  agree 

1  The  opinion  only  is  given:  it  sufficiently  states  the  case. 


w 


850  KEMBLE   V.    FARREN.  [CHAP.    VI.( 

and  being  drawTi  and  executed  in  a  form  and  mode  for  the  very  pur-  * 

pose  that  they  may  be  separated  from  the  bonds,  it  is  held  that  they  ^^ 

are  negotiable,  and  that  a  suit  may  be  maintained  on  them  without  In 

the  necessity  of  producing  the  bonds  to  which  they  were  attached. 
Interest,  as  a  general  rule,  is  due  on  a  debt  from  the  time  that  pay- 
ment is  unjustly  refused,  but  a  demand  is  not  necessary  on  a  bill  or  m 
note  payable  on  a  given  day.  Being  wTitten  contracts  for  the  pay- 
ment of  money,  and  negotiable  because  payable  to  bearer  and  passing 
from  hand  to  hand,  as  other  negotiable  instruments,  it  is  quite  apparent 
on  general  principles  that  they  should  draw  interest  after  payment  of 
the  principal  is  unjustly  neglected  or  refused.  Where  there  is  a  con- 
tract to  pay  money  on  a  day  fixed,  and  the  contract  is  broken,  interest, 
as  a  general  rule,  is  allowed,  and  that  rule  is  universal  in  respect  to 
bills  and  notes  payable  on  time.  Governed  by  that  rule  this  court  in 
the  case  of  Gelpcke  v.  Dubuque,  held  that  the  plaintiff,  in  a  case  en- 
tirely analogous,  was  entitled  to  recover  interest. 

Necessity  for  remark  upon  the  other  exceptions  is  superseded  by 
what  has  already  been  said  in  respect  to  the  plaintiff's  demurrer. 

Judgment  affirmed,  with  costs. 


SECT.    VI.]  KEMBLE   V.    FARREN.  851 

ment,  or  any  part  thereof,  or  any  stipulation  therein  contained,  such 
party  should  pay  to  the  other  the  sum  of  £1000,  to  which  sum  it  was 
thereby  agreed  that  the  damages  sustained  by  any  such  omission, 
neglect,  or  refusal,  should  amount;  and  which  sum  was  thereby  de- 
clared by  the  said  parties  to  be  liquidated  and  ascertained  damages, 
and  not  a  penalty  or  penal  sum,  or  in  the  nature  thereof. 

The  breach  alleged  in  the  declaration  was,  that  the  defendant  re- 
fused to  act  during  the  second  seasOn,  for  which  breach,  the  jury,  upon 
the  trial,  assessed  the  damages  at  £750,  which  damages  the  plaintiff 
contends  ought  by  the  terms  of  the  agreement  to  have  been  assessed 
at  £1000. 

It  is,  undoubtedly,  difficult  to  suppose  any  words  more  precise  or 
explicit  than  those  used  in  the  agreement;  the  same  declaring  not  only 
affirmatively  that  the  sum  of  £1000  should  be  taken  as  liquidated 
damages,  but  negatively  also  that  it  should  not  be  considered  as  a 
penalty,  or  in  the  nature  thereof.  And  if  the  clause  had  been  limited 
to  breaches  which  were  of  an  uncertain  nature  and  amount,  we  should 
have  thought  it  would  have  had  the  effect  of  ascertaining  the  damages 
upon  any  such  breach  at  £1000.  For  we  see  nothing  illegal  or  unrea- 
sonable in  the  parties,  by  their  mutual  agreement,  settling  the  amount 
of  damages,  uncertain  in  their  nature,  at  any  sum  upon  which  they 
may  agree.  In  many  cases,  such  an  agreement  fixes  that  which  is 
almost  impossible  to  be  accurately  ascertained;  and  in  all  cases,  it 
saves  the  expense  and  difficulty  of  bringing  witnesses  to  that  point. 
But  in  the  present  case,  the  clause  is  not  so  confined;  it  extends  to  the 
breach  of  any  stipulation  by  either  party.  If,  therefore,  on  the  one 
hand,  the  plaintiff  had  neglected  to  make  a  single  pa;>Tnent  of  £3  6s.  8d. 
per  day,  or  on  the  other  hand,  the  defendant  had  refused  to  conform 
to  any  usual  regulation  of  the  theatre,  however  minute  or  unimportant, 
it  must  have  been  contended  that  the  clause  in  question,  in  either 
case,  would  have  given  the  stipulated  damages  of  £1000.  But  that  a 
very  large  sum  should  become  immediately  payable,  in  consequence 
of  the  nonpa^Tuent  of  a  very  small  sum,  and  that  the  former  should 
not  be  considered  as  a  penalty,  appears  to  be  a  contradiction  in  terms; 
the  case  being  precisely  that  in  which  courts  of  equity  have  always 
relieved,  and  against  which  courts  of  law  have,  in  modern  times,  en- 
deavored to  relieve,  by  directing  juries  to  assess  the  real  damages  sus- 
tained by  the  breach  of  the  agreement.  It  has  been  argued  at  the  bar, 
that  the  liquidated  darpages  apply  to  those  breaches  of  the  agreement 
only  which  are  in  their  nature  uncertain,  leaving  those  which  are  cer- 
tain to  a  distinct  remedy,  by  the  verdict  of  a  jury.  But  we  can  onl}^ 
say,  if  such  is  the  intention  of  the  parties,  they  have  not  expressed  it; 
but  have  made  the  clause  relate,  by  express  and  positive  terms,  to  all 
breaches  of  every  kind.  We  cannot,  therefore,  distinguish  this  case,  in 
principle,  from  that  of  Astley  v.  Weldon,  in  which  it  was  stipulated, 
that  either  of  the  parties  neglecting  to  perform  the  agreement  should 


852  SMITH   V.    BERGENGREN.  [CHAP,    VI. 

pay  to  the  other  of  them  the  full  sum  of  £200,  to  he  recovered  in  his 
Majesty's  Courts  at  Westminster.  Here  there  was  a  distinct  agree- 
ment, that  the  sum  stipulated  should  be  liquidated  and  ascertained 
damages;  there  were  clauses  in  the  agreement,  some  sounding  in  un- 
certain damages,  oth'^rs  relating  to  certain  pecuniary  payments;  the 
action  was  brought  fO' .  the  breach  of  a  clause  of  an  uncertain  nature; 
and  yet  it  was  held  by  the  court,  that  for  this  very  reason  it  would  be^ 
al)surd  to  construe  the  sum  inserted  in  the  agreement  as  liquidated 
damages,  and  it  was  held  to  be  a  penal  sum  only.  As  this  case  appears 
to  us  to  be  decided  on  a  clear  and  intelligil)le  principle,  and  to  apply 
to  that  under  consideration,  we  think  it  right  to  adhere  to  it,  and  this 
makes  it  unnecessary  to  consider  the  subsequent  cases,  which  do  not 
in  any  way  break  in  upon  it.  The  consequence  is,  we  think  the  pres- 
ent verdict  should  stand,  and  the  rule  for  increasing  the  damages  be 
discharged. 


to^ 


Rule  discharged. 


SMITH  V.   BERGENGREN. 
Supreme  Judicial  Court  of  Massachusetts,  1891. 

[Reported  153  Mass.  236.] 

Holmes,  J.  The  defendant  covenanted  never  to  practice  his  pro- 
fession in  Gloucester  so  long  as  the  plaintiff  should  l)e  in  practice  there, 
provided,  however,  that  he  should  have  the  right  to  do  so  at  any  time 
after  five  years,  by  paying  the  plaintiff  two  thousand  dollars,  "but 
not  otherwise."  This  sum  of  two  thousand  dollars  was  not  liquidated 
damages,  still  less  was  it  a  penalty.  It  was  not  a  sum  to  be  paid  in 
case  the  defendant  broke  his  contract,  and  did  what  he  had  agreed 
not  to  do.  It  was  a  price  fixed  for  what  the  contract  permitted  him 
to  do  if  he  paid.  The  defendant  expressly  covenanted  not  to  return 
to  practice  in  Gloucester  unless  he  paid  this  price.  It  would  be  against 
common  sense  to  say  that  he  could  avoid  the  effect  of  thus  having 
named  the  sum  b}^  simph^  returning  to  practice  without  paying,  and 
could  escape  for  a  less  sum  if  the  jury  thought  the  damage  done  the 
plaintiff  by  his  competition  was  less  than  two  thousand  dollars.  The 
express  covenant  imported  the  further  agreement,  that  if  the  defendant 
did  return  to  practice  he  would  pay  the  price.  No  technical  words 
are  necessary  if  the  intent  is  fairly  to  be  gathered  from  the  instrument. 
See  Pearson  v.  Williams,  24  Wend.  244,  and  2G  Wend.  630;  Stevinson's 
Case,  1  Leon.  324;  St.  Albans  v.  Ellis,  16  East,  352;  Deverill  v.  Burnell, 
L.  R.  8  C.  P.  475;  National  Provincial  Bank  of  England  v.  Marshall, 
40  Ch.  D.  112. 

If  the  sum  had  been  fixed  as  liquidated  damages,  the  defendant 
would  have  been  bound  to  pay  it.     Cushing  v.  Drew,  97  JVIass.  445. 


SECT.   VI.]     CLIDEBAXK   ENGINEERING   ETC.   CO.   I'.    YZQIERDO.        853 

Lynde  r.  Thompson,  2  Allen,  456.  Holbrook  v.  Tobey,  66  Maine,  410. 
But  this  case  falls  within  the  language  of  Lord  Mansfield  in  Lowe  v. 
Peers,  4  Burr.  2225,  2229,  that  if  there  is  a  covenant  not  to  plough 
with  a  penalty  in  a  lease,  a  court  of  equity  will  relieve  against  the 
penalty,  "  but  if  it  is  worded  '  to  pay  £5  an  acre  for  every  acre  ploughed 
up,'  there  is  no  alternative,  no  room  for  any  relief  against  it,  no  com- 
pensation; it  is  the  substance  of  the  agreement."  See  also  Ropes  v. 
Upton,  125  Mass.  258,  260.  The  ruling  exceptec  ro  did  the  defendant 
no  wrong.  In  the  opinion  of  a  majority  of  the  court,  the  exceptions 
must  be  overruled. 

Exceptions  overruled. 


CLYDEBANK  ENGINEERING  AND  SHIPBUILDING 
COMPANY  V.  YZQIERDO. 

House  of  Lords,  Scotch,  1904. 

[Reported  [1905]  A.  C.  6.] 

The  Spanish  Government,  represented  by  the  respondents,  sought 
to  recover  from  the  appellants  the  penalties  alleged  to  have  been  in- 
curred by  the  appellants  under  a  contract  dated  June  4,  1896,  for  the 
construction  of  two  torpedo-boat  destroyers,  afterwards  named  Audaz 
and  Osado,  and  the  penalties  alleged  to  have  been  incurred  by  the 
appellants  under  another  contract  dated  November  24,  1896,  for  the 
construction  of  two  torpedo-boat  destroyers,  afterwards  named  Pluton 
and  Proserpina. 

Earl  of  Halsbury,  L.  C.  My  Lords,  this  is  a  case  in  which  a  party 
to  an  agreement  has  admittedly  broken  it,  and  an  action  was  brought 
for  the  purpose  of  enforcing  the  payment  of  a  sum  of  money  which, 
by  the  agreement  between  the  parties,  was  fixed  as  that  which  the  de- 
fenders were  t0|  pay  in  the  event  that  has  happened. 

Two  objections  have  been  made  to  the  enforcement  of  that  payment. 
The  first  objection  is  one  which  appears  upon  the  face  of  the  instru- 
ment itself,  namely,  that  it  is  a  penalty,  and  not,  therefore,  recoverable 
as  a  pactional  arrangement  of  the  amount  of  damages  resulting  from 
the  breach  of  contract.  It  cannot,  I  think,  be  denied  —  indeed,  I 
think  it  has  been  frankly  admitted  by  the  learned  counsel  —  that  not 
much  reliance  can  be  placed  upon  the  mere  use  of  certain  words.  Both 
in  England  and  in  Scotland  it  has  been  pointed  out  that  the  Court 
must  proceed  according  to  what  is  the  real  nature  of  the  transaction, 
and  that  the  mere  use  of  the  word  "penalty"  on  the  one  side,  or 
"damages"  on  the  other,  would  not  be  conclusive  as  to  the  rights  of. 
the  parties.  It  is,  I  think,  not  denied  now  that  the  law  is  the  same 
both  in  England  and  in  Scotland.    The  different  form  of  its  administra- 


7V 


854       CLYDEBANK    ENGINEERING    ETC.    CO.    V.    YZQIERDO.      [CHAP.    VI. 

tion  gave  rise  doubtless  to  the  Act  of  William  III.  (8  &  9  Will.  3,  c.  11), 
§  8,  which,  of  course,  is  that  upon  which  English  lawyers  rely  when 
this  question  occurs;  but  that  difference  only  arises  from  a  difference 
in  the  mode  of  administering  in  this  country  the  two  branches  of 
jurisprudence  which  we  call  law  and  equity,  while  the  Scotch  judges 
had  full  jurisdiction  in  each  of  the  Courts  to  administer  justice,  and 
in  administering  justice  to  administer  it  according  to  both  branches 
of  jurisprudence. 

We  come  then  to  the  question,  What  is  the  agreement  here?  and 
whether  this  sum  of  money  is  one  which  can  be  recovered  as  an  agreed 
sum  as  damages,  or  whether,  as  has  been  contended,  it  is  simply  a 
penalty  to  be  held  over  the  other  party  in  terrorem  —  whether  it  is, 
what  I  think  gave  the  jurisdiction  to  the  Courts  in  both  countries  to 
interfere  at  all  in  an  agreement  between  the  parties,  unconscion- 
able and  extravagant,  and  one  which  no  Court  ought  to  allow  to  be 
enforced. 

My  Lords,  it  is  impossible  to  lay  dowTi  any  abstract  rule  as  to  what 
it  may  or  it  may  not  be  extravagant  or  unconscionable  to  insist  upon 
without  reference  to  the  particular  facts  and  circiunstances  which  are 
established  in  the  individual  case.  I  suppose  it  would  be  possible  in 
the  most  ordinary  case,  where  people  know  what  is  the  thing  to  be 
done  and  what  is  agreed  to  be  paid,  to  say  whether  the  amomit  was 
unconscionable  or  not.  For  instance,  if  you  agreed  to  build  a  house 
in  a  year,  and  agreed  that  if  you  did  not  build  the  house  for  £50,  you 
were  to  pay  a  million  of  money  as  a  penalty,  the  extravagance  of  that 
would  be  at  once  apparent.  Betw^een  such  an  extreme  case  as  I  have 
supposed  and  other  cases,  a  great  deal  must  depend  upon  the  nature 
of  the  transaction  —  the  thing  to  be  done,  the  loss  likely  to  accrue  to 
the  person  who  is  endeavouring  to  enforce  the  performance  of  the  con- 
tract, and  so  forth.  It  is  not  necessary  to  enter  into  a  minute  dis- 
quisition upon  that  subject,  because  the  thing  speaks  for  itself.  But, 
on  the  other  hand,  it  is  quite  certain,  and  an  established  principle  in 
both  countries,  that  the  parties  may  agree  beforehand  to  say,  "Such 
and  such  a  sum  shall  be  damages  if  I  break  my  agreement."  The 
very  reason  why  the  parties  do  in  fact  agree  to  such  a  stipulation  is 
that  sometimes,  although  undoubtedly  there  is  damage  and  undoubt- 
edly damages  ought  to  be  recovered,  the  nature  of  the  damage  is  such 
that  proof  of  it  is  extremely  complex,  difficult,  and  expensive.  If  I 
wanted  an  example  of  what  might  or  might  not  be  said  and  done  in 
controversies  upon  damages,  unless  the  parties  had  agreed  before- 
hand, I  could  not  have  a  better  example  than  that  which  the  learned 
counsel  has  been  entertaining  us  with  for  the  last  half-hour  in  respect 
of  the  damage  resulting  to  the  Spanish  Government  by  the  withhold- 
ing of  these  vessels  beyond  the  stipulated  period.  Supposing  there 
was  no  such  bargain,  and  supposing  the  Spanish  Government  had  to 
prove  damages  in  the  ordinary  way  without  insisting  upon  the  stipu- 


SECT.    VI.]      CLYDEBANK    ENGINEERING    ETC.    CO.    V.    YZQIERDO.        855 

lated  amount  of  them,  just  imagine  what  would  have  to  be  the  cross- 
examination  of  every  person  connected  with  the  Spanish  Administra- 
tion such  as  is  suggested  by  the  commentaries  of  the  learned  counsel: 
"You  have  so  many  thousand  miles  of  coast-line  to  defend  by  your 
torpedo-boat  destroyers;  what  would  four  torpedo-boat  destroyers  do 
for  that  purpose?  How  could  you  say  you  are  damaged  by  their  non- 
delivery? How  many  filibustering  expeditions  could  you  have  stopped 
by  the  use  of  four  torpedo-boat  destroyers?" 

My  Lords,  I  need  not  pursue  that  topic.  It  is  obvious  on  the  face 
of  it  that  the  very  thing  intended  to  be  provided  against  by  this  pac- 
tional amount  of  damages  is  to  avoid  that  kind  of  minute  and  some- 
what difficult  and  complex  system  of  examination  which  would  be 
necessary  if  you  were  to  attempt  to  prove  the  damage.  As  I  pointed 
out  to  the  learned  counsel  during  the  course  of  his  argument,  in  order 
to  do  that  properly  and  to  have  any  real  effect  upon  any  tribunal 
determining  that  question,  one  ought  to  have  before  one's  mind  the 
whole  administration  of  the  Spanish  Navy  —  how  they  were  going  to 
use  their  torpedo-boat  destroyers  in  one  place  rather  than  another, 
and  what  would  be  the  relative  speed  of  all  the  boats  they  possessed 
in  relation  to  those  which  they  were  getting  by  this  agreement.  It 
would  be  absolutely  idle  and  impossible  to  enter  into  a  question  of 
that  sort  unless  you  had  some  kind  of  agreement  between  the  parties 
as  to  what  was  the  real  measure  of  damages  which  ought  to  be  applied. 

Then  the  other  learned  counsel  suggests  that  you  cannot  have 
damages  of  this  character,  because  really  in  the  case  of  a  warship  it 
has  no  value  at  all.  That  is  a  strange  and  somewhat  bold  assertion. 
If  it  was  an  ordinary  commercial  vessel  capable  of  being  used  for  ob- 
taining profits,  I  suppose  there  would  not  be  very  much  difficulty  in 
finding  out  what  the  ordinary  use  of  a  vessel  of  this  size  and  capacity 
and  so  forth  would  be,  what  would  be  the  hire  of  such  a  vessel,  and 
what  would  therefore  be  the  equivalent  in  money  of  not  obtaining  the 
use  of  that  vessel  according  to  the  agreement  during  the  period  which 
had  elapsed  between  the  time  of  proper  delivery  and  the  time  at 
which  it  was  delivered  in  fact.  But,  says  the  learned  counsel,  you 
cannot  apply  that  principle  to  the  case  of  a  warship  because  a  war- 
ship does  not  earn  money.  It  is  certainly  a  somewhat  bold  conten- 
tion. I  should  have  thought  that  the  fact  that  a  warship  is  a  warship, 
her  very  existence  as  a  warship  capable  of  use  for  such  and  such  a  time, 
would  prove  the  fact  of  damage  if  the  party  was  deprived  of  it,  although 
the  actual  amount  to  be  earned  by  it,  and  in  that  sense  to  be  obtained 
by  the  pa^Tnent  of' the  price  for  it,  might  not  be  very  easily  ascertained 
—  not  so  easily  ascertained  as  if  the  vessel  were  used  for  commercial 
purposes  and  where  its  hire  as  a  commercial  vessel  is  ascertainable  in 
money.  But,  my  Lords,  is  that  a  reason  for  sa^-ing  that  you  are  not  to 
have  damages  at  all?  It  seems  to  me  it  is  hopeless  to  make  such  a 
contention,  and  although  that  would  not  in  itself  be  a  very  cogent 


85G       CLIDEBANK   ENGINEERING   ETC.    CO.   V.   YZQIERDO.     [CHAP.   VI. 

argument  because  the  law  might  be  so  absurd,  yet  it  would  be  a  very- 
startling  proposition  to  say  that  you  never  could  have  agreed  damages 
for  the  non-delivery  of  a  ship  of  war  although,  under  the  very  same 
words  with  exactly  the  same  phraseology  in  the  particular  contract, 
you  might  have  damages  if  it  was  a  vessel  used  for  commercial  pur- 
poses; so  that  you  would  have  to  give  a  different  construction  to  the 
very  same  words  according  to  whether  the  thing  agreed  to  be  built 
was  a  warship  or  a  ship  intended  for  commercial  purposes.  My  Lords, 
I  think  it  is  only  necessary  to  state  the  contention  to  shew  that  it  is 
utterly  unsound. 

Then  there  comes  another  argument  which,  to  my  mind,  is  more 
startling  still:  the  vessel  was  to  be  delivered  at  such  and  such  a  time; 
it  was  not  delivered,  but  the  fleet  the  Spanish  Government  had  was 
sent  out  at  such  a  time  and  the  greater  part  of  it  was  sunk,  and,  says 
the  learned  counsel,  "  If  we  had  kept  our  contract  and  delivered  these 
vessels  they  would  have  shared  the  fate  of  the  other  vessels  belonging 
to  the  Spanish  Government,  and  therefore  in  fact  you  have  got  your 
ships  now,  whereas  if  we  had  kept  our  contract  they  would  have  been 
at  the  bottom  of  the  Atlantic."  My  Lords,  I  confess,  after  some  ex- 
perience, I  do  not  think  I  ever  heard  an  argument  of  that  sort  before, 
and  I  do  not  think  I  shall  often  hear  it  again.  Nothing  could  be  more 
absurd  than  such  a  contention,  which,  if  it  were  reduced  to  a  com- 
pendious form  such  as  one  has  in  a  marginal  note,  would  certainly  be 
a  striking  example  of  jurisprudence.  I  think  I  need  say  no  more  to 
shew  how  utterly  absurd  such  a  contention  is.  I  pass  on  to  the  other 
question. 

It  seems  to  me,  when  one  looks  to  see  what  was  the  nature  of  the 
transaction  in  this  case,  it  is  hopeless  to  contend  that  the  parties  only 
intended  this  as  something  in  terroreni.  Both  parties  recognised  the 
fact  of  the  importance  of  time ;  it  is  a  case  in  which  time  is  of  the  essence 
of  the  contract  and  so  regarded  by  both  parties,  and  the  particular 
sum  fixed  upon  as  being  the  agreed  amount  of  damages  was  suggested 
by  the  defendants  themselves,  and  to  say  that  that  can  be  uncon- 
scionable or  something  which  the  parties  ought  not  to  insist  upon, 
that  it  was  a  mere  holding  out  something  in  tcrrorem,  after  looking  at 
the  correspondence  between  the  parties  is,  to  my  mind,  not  a  very 
plausible  suggestion.  I  have,  therefore,  come  to  the  conclusion  that 
the  judgments  of  the  Courts  in  Scotland  are  perfectly  right  in  this 
respect,  and  I  think  there  is  no  ground  for  the  contention  that  this  is 
not  pactional  damage  agreed  to  between  the  parties  —  and  for  very 
excellent  reason  agreed  to  between  the  parties  —  at  the  time  the  con- 
tract was  entered  into. 

My  Lords,  then  there  comes  the  further  question  as  to  waiver. 
That  question,  of  course,  assumes  that  these  damages  can  be  recovered, 
apart  from  the  question  of  whether  or  not  this  vested  right  of  action, 
which  undoubtedly  was  a  vested  right  of  action,  for  the  non-delivery 


SECT.    VI.]      CLYDEBANK    ENGINEERING    ETC.    CO.    V.    YZQIERDO.        857 

of  these  boats  within  the  Hmit  of  time  can  be  answered  by  saying  that 
it  has  been  released  by  waivqr.  I  am  not  certain  that  I  understand 
the  apphcation  of  the  doctrine  of  waiver  to  such  a  question  as  we  are 
now  deahng  with  of  the  release  of  a  right  of  action  already  vested; 
but,  assuming  we  get  over  that  difficulty,  I  do  not  feel  as  a  matter  of 
fact  that  there  is  any  evidence  upon  which  anybody  could  reasonably 
rely  that  there  was  an  agreement  assented  to  by  both  parties  that 
these  damages  should  be  waived.  The  earlier  part  of  this  transaction 
and  the  correspondence  between  the  parties  I  think  is  quite  satisfac- 
torily dealt  with  by  the  Lord  Ordinary  in  his  very  lucid  judgment, 
and  it  comes  to  this :  that  because  for  some  time  —  I  tliink  I  may  say 
in  aid  of  the  defendants'  argument  some  considerable  time  —  this 
was  not  put  forward  or  insisted  upon,  that,  of  itself,  is  to  be  absolute 
evidence  of  a  waiver.  I  do  not  see  it.  I  must  say  I  never  heard  of  a 
waiver,  the  issue  upon  which  is  undoubtedly  upon  the  party  who 
averred  it,  established  by  such  a  proposition.  The  mere  fact  of  pay- 
ment without  deduction  I  think  may  be  dealt  with  very  shortly.  As- 
suming a  great  desire  to  get  these  vessels,  and  assuming  that  the 
Spanish  Government  were  in  earnest  —  and  I  do  not  know  why  it  can 
be  suggested  that  they  were  not  —  to  get  these  vessels  with  great 
urgency,  it  would  to  my  mind  have  been  a  very  extraordinary  thing  if 
they  should  have  risked  the  delay  which  would  have  arisen  from  a 
controversy  in  respect  of  claims  which  the  builders  undoubtedly  had, 
and  if  they  had  given,  as  it  were,  an  excuse  for  the  non-delivery  of  the 
ships  by  reason  of  those  claims  giving  rise  to  the  sort  of  argument 
which  has  lasted  not  a  short  time  here,  and  which  would  have  come  up 
to  this  House  long  after  the  war  between  the  American  and  the  Spanish 
Governments  had  come  to  an  end.  My  Lords,  under  those  circum- 
stances it  appears  to  me  a  very  natural  thing  that  the  claim  was  not 
insisted  upon  in  the  first  instance;  and  with  reference  to  the  delay 
afterwards  I  cannot  help  having  regard  to  the  mode  of  Spanish  ad- 
ministration; apart  from  any  intention  to  waive,  I  can  well  imagine 
that  for  some  time  the  question  was  allowed  to  hang  over  until  the  de- 
partments in  London  and  in  Madrid  had  ascertained  their  respective 
rights  and  the  Spanish  Government  had  made  a  claim.  It  is  enough, 
however,  to  say  that  there  is  no  evidence  upon  which  any  tribunal 
should  reasonably  act,  even  if  there  could  be  a  waiver  in  point  of  law, 
as  to  which  I  venture  to  express  considerable  doubt;  but,  be  that  as 
it  may,  there  is  no  evidence  upon  that,  and  I  need  not  therefore  ex- 
press any  opinion  upon  that  subject. 

I  am  entirely  of  opinion  that  the  judgments  of  the  Court  below  are 
right,  and  I  move  your  Lordships  that  this  appeal  be  dismissed  with 
costs. 

Lords  Davey  and  Robertson  delivered  concurring  opinions. 


858  UNITED    STATES   V.    BETHLEHEM   STEEL   CO,        [CHAP.    VI. 


UNITED   STATES  v.   BETHLEHEM  STEEL  CO. 
^  Supreme  Court  of  the  United  States,  1906. 

[Reported  205  U.  S.  105.] 

The  Company  filed  its  petition  in  the  Court  of  Claims  seeking  to 
recover  a  balance  which  it  alleged  was  due  from  the  LTnited  States  on  a 
contract  for  the  construction  of  certain  gun  carriages.  The  United 
States  had  deducted  from  the  contract  price  an  amount  agreed  upon 
as  to  be  deducted  for  delay  in  performance.^ 

Peckham,  J.  It  is  objected  on  the  part  of  the  company  that  as  the 
contract  in  question  is,  as  asserted,  plain  and  unambiguous  in  its  terms, 
no  reference  can  be  made  to  other  evidence  or  to  documents  which  do 
not  form  part  of  the  contract.  The  general  rule  that  prior  negotiations 
are  merged  in  the  terms  of  a  written  contract  between  the  parties  is 
referred  to,  and  it  is  insisted  that  under  that  rule  the  various  letters 
passing  between  the  parties  prior  to  the  execution  of  the  contract  are 
not  admissible. 

The  rule  that  prior  negotiations  are  merged  in  the  contract  is  general 
in  its  nature,  and,  we  think,  does  not  preclude  reference  to  letters  be- 
tween the  parties  prior  to  the  execution  of  the  contract  in  this  case. 
The  language  employed  in  this  contract  for  a  deduction,  in  the  dis- 
cretion of  the  Chief  of  Ordnance,  of  $35  per  day  from  the  price  to  be 
paid  for  each  day  of  delay  in  the  delivery  of  each  gun  carriage,  respec- 
tively, taken  in  connection  with  the  subject-matter  of  the  contract, 
leaves  room  for  the  construction  of  that  language  in  order  to  determine 
which  was  intended,  a  penalty  or  liquidated  damages.  While  it  is 
claimed  that  there  is  really  no  doubt  as  to  the  proper  construction  of 
the  contract,  even  if  the  contract  alone  is  to  be  considered,  yet  we 
think  that  much  light  is  given  as  to  the  true  meaning  of  language  that 
is  not  wholly  free  from  doubt  by  a  consideration  of  the  correspondence 
between  the  parties  before  the  final  execution  of  the  contract  itself. 
Lender  such  circumstances  we  think  it  never  has  been  held  that  recourse 
could  not  be  had  to  the  facts  surrounding  the  case  and  to  the  prior 
negotiations  for  the  purpose  of  determining  the  correct  construction  of 
the  language  of  the  contract.  Simpson  v.  United  States,  199  U.  S.  397- 
399.  In  Brawley  v.  United  States,  96  U.  S.  168-173,  the  court  says: 
"  Previous  and  contemporaneous  transactions  may  be  all  very  properly 
taken  into  consideration  to  ascertain  the  subject-matter  of  a  contract 
and  the  sense  in  which  the  parties  may  have  used  particular  terms." 

It  is  not  for  the  purpose  of  making  a  contract  for  the  parties,  but  to 
understand  what  contract  was  actually  made,  that  in  cases  of  doubt  as 

>  This  short  statement  is  substituted  for  that  of  Mr.  Ju.stice  Peckham.  —  Ed. 


SECT.   VI.]  UNITED   STATES  V.   BETHLEHEM   STEEL  CO.  859 

to  the  meaning  of  language  actually  used  prior  negotiations  may  some- 
times be  referred  to. 

There  has  in  almost  innumerable  instances  been  a  question  as  to  the 
meaning  of  language  used  in  that  part  of  a  contract  which  related  to  the 
payment  of  damages  for  its  non-fulfillment,  whether  the  provision  there 
made  was  one  for  liquidated  damages  or  whether  it  meant  a  penalty 
simply,  the  damages  to  be  proved  up  to  the  amount  of  the  penalty. 
This  contract  might  be  considered  as  being  one  of  that  class  where  a 
doubt  might  be  claimed,  if  nothing  but  the  contract  were  examined. 
The  courts  at  one  time  seemed  to  be  quite  strong  in  their  \'iews  and 
would  scarcely  admit  that  there  ever  was  a  valid  contract  providing  for 
liquidated  damages.  Their  tendency  was  to  construe  the  language  as  a 
penalty,  so  that  nothing  but  the  actual  damages  sustained  by  the  party 
aggrieved  could  be  recovered.  Subsequently  the  courts  became  more 
tolerant  of  such  provisions,  and  have  now  become  strongly  inclined  to 
allow  parties  to  make  their  o^ti  contracts,  and  to  carry  out  their  inten- 
tions, even  when  it  would  result  in  the  recovery  of  an  amount  stated  as 
liquidated  damages,  upon  proof  of  the  violation  of  the  conti-^ct,  and 
without  proof  of  the  damages  actually  sustained.  This  whole  subject 
is  reviewed  in  Sun  Printing  &  Publishing  Association  v.  Moore,  183 
U.  S.  642,  669,  where  a  large  number  of  authorities  upon  this  subject  are 
referred  to.  The  principle  decided  in  that  case  is  much  like  the  con- 
tention of  the  Government  herein.  The  question  always  is,  what  did 
the  parties  intend  by  the  language  used?  When  such  intention  is 
ascertained  it  is  ordinarily  the  duty  of  the  court  to  carry  it  out.  See 
also  Clement  v.  Cash,  21  N.  Y.  253,  257;  Little  v.  Banks,  85  N.  Y.  258, 
266. 

The  Government  at  the  time  of  the  execution  of  this  contract  (which 
was  dated  April  4,  1898)  was  making  preparation  for  the  expected  war 
with  Spain,  which  was  imminent,  and  which  was  declared  by  Congress 
a  few  days  thereafter.  The  Government  was  evidently  desirous  of 
obtaining  the  construction  of  these  gun  carriages  as  early  as  it  was 
reasonably  possible,  and  it  was  prepared  to  pay  an  increased  price  for 
speed.  The  acceptance  of  the  proposal  at  the  highest  price  for  the 
delivery  of  the  carriages  in  the  shortest  time  is  also  evidence  of  the  im- 
portance with  which  the  Government  officers  regarded  the  element  of 
speed.  There  can  be  no  doubt  as  to  its  importance  in  their  opinion, 
or  that  such  opinion  was  communicated  to  the  company.  In  the  light 
of  this  fact  an  examination  of  the  language  of  the  contract  itself  upon 
the  question  of  deductions  for  delay  in  delivery  renders  its  meaning 
quite  plain.  It  is  true  that  the  word  "  penalty  "  is  used  in  some  portions 
of  the  contract,  although  in  the  clause  providing  for  the  $35  per  day  de- 
duction that  word  is  not  used,  nor  are  the  words  "liquidated  damages" 
to  be  found  therein.  The  word  "  penalty  "  is  used  in  the  correspondence, 
even  by  the  officers  of  the  Government,  but  we  think  it  is  evident  that 
the  word  was  not  used  in  the  contract  nor  in  the  correspondence  as 


SCO  UNITED    STATES    L\    BETHLEHEM    STEEL   CO.       [CHAP.    VI. 

indicative  of  the  technical  and  legal  difference  between  penalty  and 
licfuidated  damages.  It  was  used  simply  to  provide  that  the  amount 
named  might  be  deducted  if  there  were  a  delay  in  delivery.  Either 
expression  is  not  always  conclusive  as  to  the  meaning  of  the  parties. 
Little  V.  Banks,  85  N.  Y.,  supra;  Ward  v.  Hudson  River  Building  Co., 
125  N.  Y.  230.  What  was  meant  by  the  use  of  the  language  in  question 
in  this  case  is  rendered,  as  we  think,  still  more  certain  by  the  manner  in 
which  the  $35  per  day  was  arrived  at,  as  stated  in  the  letters  of  the 
officers  representing  the  Government,  whiclL  were  examined  and  criti- 
cized by  the  company  before  the  signing  of  the  contract.  The  corre- 
spondence shows  that  the  sum  was  arrived  at  by  figuring  the  average 
difference  in  time  of  delivery  between  the  price  bid  for  slow  delivery 
of  the  carriages  and  the  price  under  the  accepted  bid,  the  department 
saying  "  that  this  average  difference  should  be  the  prescribed  penalty." 

Having  this  question  before  them  and  the  amount  stated  arrived  at 
in  the  manner  kno^\'n  to  both  parties,  we  think  it  appears  from  the 
contract  and  the  correspondence  that  it  was  the  intention  of  the  parties 
that  this  amount  should  be  regarded  as  liquidated  damages,  and  not 
technically  as  a  penalty.  This  view  is  also  strengthened  when  we 
recognize  the  great  difficulty  of  proving  damage  in  a  case  like  this, 
regard  being  had  to  all  the  circumstances  heretofore  referred  to.  It 
would  have  been  very  unusual  to  allow  the  company  to  obtain  the  con- 
tract for  the  construction  of  these  carriages,  and  yet  to  place  it  under  no 
liability  to  fulfill  it  as  to  time  of  delivery,  specially  agreed  upon,  other 
than  to  pay  only  those  actual  damages  (not  exceeding  $35  per  day) 
that  might  be  proved  were  naturally  and  proximately  caused  by  the 
failure  to  deliver.  The  provision  under  such  circumstances  would  be  of 
no  real  value.  The  circumstances  were  such  that  it  would  be  almost 
necessarily  impossible  to  show  what  damages  (if  any)  might  or  naturall}' 
would  result  from  a  failure  to  fulfill  the  contract.  The  fact  that  not 
very  long  after  the  contract  had  been  signed  and  the  war  with  Spain 
was  near  "its  end,  the  importance  of  time  as  an  element  largely  disap- 
peared, and  that  practically  no  damage  accrued  to  the  Government  on 
account  of  the  failure  of  the  company  to  deliver,  cannot  affect  the  mean- 
ing of  this  clause  as  used  in  the  contract  nor  render  its  language  sub- 
stantially worthless  for  any  purpose  of  security  for  the  proper  perform- 
ance of  the  contract  as  to  time  of  delivery. 

The  amount  is  not  so  extraordinarily  disproportionate  to  the  damage 
which  might  result  from  the  failure  to  deliver  the  carriages,  as  to  show 
that  the  parties  nmst  have  intended  a  penalty  and  could  not  have  meant 
liquidated  damages.  If  the  contract  were  construed  as  contended  for 
by  the  company,  it  would  receive  (as  events  have  turned  out)  the  high- 
est price  for  the  longest  time  in  which  to  deliver,  which  could  not  have 
been  contemplated  by  either  party.  This  would  result  from  the  finding 
that  no  damages  in  fact  flowed  from  the  failure  to  deliver  on  time. 

The  eighth  finding  of  the  Court  of  Claims  is  in  effect  that  the  failure 


SECT.    VI.]  WISE   V.    UNITED    STATES.  861 

to  deliver  was  caused  in  part  by  both  parties;  that  the  total  number 
of  days'  failure  was  1,09G  days,  of  which  496  were  caused  by  the  de- 
fendant's officers,  and  it  does  not  mean  that  the  court  regarded  itself 
as  bound  by  the  decision  of  the  Chief  of  Ordnance  as  to  the  number  of 
days  that  the  claimant  or  the  Government  delayed  the  delivery.  It 
•found  the  number  of  days  as  stated,  and  that  the  transactions  were  so 
involved  that  whether  the  defendant  should  be  charged  with  a  greater 
proportion  of  the  delays  than  set  forth  in  the  finding,  the  court  could 
not  decide  on  the  evidence  produced. 

The  judgment  of  the  Court  of  Claims  must  be  reversed  and  the  cause 
remanded  with  directions  to  dismiss  the  petition. 

Reversed. 


WISE   V.   UNITED   STATES. 
Supreme  Court  of  the  United  States,  1919. 

[Reported  249  U.  S.  361.] 

Clarke,  J.  In  December,  1904,  Stannard,  represented  in  this  case 
by  his  Trustee  in  Bankruptcy,  contracted  with  the  United  States  to 
erect  two  laboratory  buildings  for  the  Department  of  Agriculture,  in 
the  city  of  Washington,  D.  C,  for  .11,171,000.  The  buildings  were  both 
to  be  completed  in  thirty  months  and  for  a  delay  of  101  days  beyond 
the  contract  period  the  Government  deducted  from  the  contract  price 
$200  a  day,  the  amount  stipulated  in  the  contract  as  liquidated  damages, 
a  total  of  $20,200,  and  the  claim  made  in  this  court  is  for  the  recovery  of 
that  amount. 

The  Court  of  Claims  dismissed  the  petition  and  the  case  is  here 
on  appeal. 

The  contract  was  in  writing  and  the  specifications,  which  the  con- 
tractor had  before  him  when  bidding,  were  made  a  part  of  it.  These 
specifications  contain  thefollowing: 

"11.  Each  bidder  must  submit  his  proposal  with  the  distinct  under- 
standing that,  in  case  of  its  acceptance,  time  for  the  completion  of  the 
work  shall  be  considered  as  of  the  essence  of  the  contract,  and  that  for 
the  cost  of  all  extra  inspection  and  for  all  amounts  paid  for  rents,  sal- 
aries, and  other  expenses  entailed  upon  the  United  States  by  delay  in 
completing  the  contract,  the  United  States  shall  be  entitled  to  the  fixed 
sum  of  $200,  as  liquidated  damages,  computed,  estimated,  and  agreed 
upon,  for  each  and  every  day's  delay  not  caused  by  the  United  States." 

The  provision  of  the  contract  upon  the  subject  is : 

"3.  To  complete  the  said  work  in  all  its  parts  within  thirty  months 
from  the  date  of  the  receipt  of  the  notice  referred  to  in  subdi\ision  2 


862  WISE   V.    UNITED    STATES.  [CHAP.    VI. 

hereof.  Time  is  to  be  considered  as  of  the  essence  of  the  contract,  and 
in  case  the  completion  of  said  work  shall  be  delayed  beyond  said  period, 
the  party  of  the  second  part  may,  in  view  of  the  difficulty  of  estimating 
witli  exactness  the  damages  which  will  result,  deduct  as  liquidated 
damages,  and  not  as  a  penalty,  the  sum  of  two  hundred  dollars  ($200.00) 
for  each  and  every  day  during  the  continuance  of  such  delay  and  until 
such  work  shall  be  completed,  and  such  deductions  may  be  made  from 
time  to  time,  from  any  payment  due  hereunder." 

There  is  no  dispute  as  to  the  extent  of  the  delay  and  the  sole  con- 
tention of  the  appellant  is  that,  because  a  single  sum  in  damages  is 
stipulated  for,  without  regard  to  whether  the  completion  of  one  or  both 
buildings  should  be  delayed,  and  because  the  damage  to  the  Govern- 
ment would  probably  be  less  in  amount  if  one  were  completed  on  time 
and  the  other  not,  than  if  the  completion  of  both  were  delayed,  the 
provision  of  the  contract  with  respect  to  liquidated  damages  cannot  be 
considered  the  result  of  a  genuine  pre-estimate  of  the  loss  which  would 
be  caused  by  the  delay  but  must  be  regarded  as  a  penalty  which  requires 
proof  of  damage  in  any  amount  to  be  deducted. 

If  it  were  not  for  the  earnestness  with  which  this  claim  is  presented 
we  should  content  ourselves  with  the  observation  that  as  there  was 
delay  in  the  completion  of  both  buildings,  the  case  falls  literally  within 
the  terms  of  the  contract  of  the  parties  and  that  a  court  will  refuse  to 
imagine  a  different  state  of  facts  than  that  before  it  for  the  purpose 
of  obtaining  a  basis  for  modifying  a  written  agreement,  which  evidently 
was  entered  into  with  great  deliberation. 

The  subject  of  the  interpretation  of  provisions  for  liquidated  damages 
in  contracts,  as  contradistinguished  from  such  as  provide  for  penalties, 
was  elaborately  and  comprehensively  considered  by  this  court  in  Sun 
Printing  &  Publishing  Association  v.  Moore,  183  U.  S.  642,  applied  in 
United  States  v.  Bethlehem  Steel  Co.,  205  U.  S.  105,  and  the  result  of 
the  modern  decisions  was  determined  to  be  that  in  such  cases  courts  will 
endeavor,  by  a  construction  of  the  agreement  which  the  parties  have 
made,  to  ascertain  what  their  intention  was  when  they  inserted  such  a 
stipulation  for  payment,  of  a  designated  sum  or  upon  a  designated  basis, 
for  a  breach  of  a  covenant  of  their  contract,  precisely  as  they  seek  for 
the  intention  of  the  parties  in  other  respects.  When  that  intention  is 
clearly  ascertainable  from  the  writing,  effect  will  be  given  to  the  provi- 
sion, as  freely  as  to  any  other,  where  the  damages  are  uncertain  in  nature 
or  amount  or  are  difficult  of  ascertainment  or  where  the  amount  stipu- 
lated for  is  not  so  extravagant,  or  disproportionate  to  the  amount  of 
property  loss,  as  to  show  that  compensation  was  not  the  object  aimed 
at  or  as  to  imply  fraud,  mistake,  circumvention  or  oppression.  There 
is  no  sound  reason  why  persons  competent  and  free  to  contract  may 
not  agree  upon  this  subject  as  fully  as  upon  any  other,  or  why  theii; 
agreement,  when  fairly  and  understandingly  entered  into  with  a  view 
to  just  compensation  for  the  anticipated  loss,  should  not  be  enforced. 


SECT.    VI.]  .  WISE   V.    UNITED    STATES.  863 

There  are,  no  doubt,  decided  cases  which  tend  to  support  the  con- 
tention advanced  by  appellant,  but  these  decisions  were,  for  the  most 
part,  rendered  at  a  time  when  courts  were  disposed  to  look  upon  such 
provisions  in  contracts  with  disfavor  and  to  construe  them  strictly, 
if  not  astutely,  in  order  that  damages,  even  though  termed  liquidated, 
might  be  treated  as  penalties,  so  that  only  such  loss  as  could  be  defi- 
nitely proved  could  be  recovered.  The  later  rule,  however,  is  to  look 
with  candor,  if  not  with  favor,  upon  such  provisions  in  contracts  when 
deliberately  entered  into  between  parties  who  have  equality  of  oppor- 
tunity for  understanding  and  insisting  upon  their  rights,  as  promoting 
prompt  performance  of  contracts  and  because  adjusting  in  advance,  and 
amicably,  matters  the  settlement  of  which  through  courts  would  often 
involve  difficulty,  uncertainty,  delay  and  expense. 

The  result  of  the  application  of  the  doctrine  thus  stated  to  the  case 
before  us  cannot  be  doubtful. '  The  character  of  the  contract  and  the 
amount  involved  assures  experience  and  large  capacity  in  the  contractor 
and  the  parties  specifically  state  that  the  amount  agreed  upon  as  liqui- 
dated damages  had  been  "computed,  estimated  and  agreed  upon"  be- 
tween them.  It  is  obvious  that  the  extent  of  the  loss  which  would 
result  to  the  Government  from  delay  in  performance  must  be  uncertain 
and  difficult  to  determine  and  it  is  clear  that  the  amount  stipulated  for 
is  not  excessive,  having  regard  to  the  amount  of  money  which  the 
Government  would  have  invested  in  the  buildings  at  the  time  when  such 
delay  would  occur,  to  the  expense  of  s,ecuring  or  continuing  in  other 
buildings  during  such  delay,  and  to  the  confusion  which  must  neces- 
sarily result  in  the  important  and  extensive  laboratory  operations  of 
the  Department  of  Agriculture. 

The  parties  to  the  contract,  with  full  understanding  of  the  results 
of  delay  and  before  diflferences  or  interested  views  had  arisen  between 
them,  were  much  more  competent  to  justly  determine  what  the  amount 
of  damage  would  be,  an  amount  necessarily  largely  conjectural  and 
resting  in  estimate,  than  a  court  or  jury  would  be,  directed  to  a  conclu- 
sion, as  either  must  be,  after  the  event,  by  views  and  testimony  deri\ed 
from  witnesses  who  would  be  unusual  to  a  degree  if  their  conclusions 
were  not,  in  a  measure,  colored  and  partisan. 

There  is  nothing  in  the  contract  or  in  the  record  to  indicate  that  the 
parties  did  not  take  into  consideration,  when  estimating  the  amount 
of  damage  which  would  be  caused  by  delay,  the  prospect  of  one  building 
being  delayed  and  the  other  not,  and  the  amount  of  the  damages  stipu- 
lated, having  regard  to  the  circumstances  of  the  case,  may  well  have 
been  adopted  with  reference  to  the  probability  of  such  a  result. 
The  judgment  of  the  Court  of  Claims  must  be 

Affirmed. 


864  GODDARD    V.    (.RAND    TRUNK    RAILWAY.  [CHAP.    VI. 

SECTION  VII. 

Exemplary  Damages. 

GODDARD  V.   GRAND  TRUNK  RAILWAY. 
Supreme  Judicial  Court  of  Maine,  1869. 

[Reported  57  Me.  202.] 

Trespass  for  an  alleged  assault  by  a  servant  of  the  defendants,  in 
one  of  their  first-class  passenger  cars,  upon  the  plaintiff. 

Walton,  J.  .  .  .  We  now  come  to  the  second  branch  of  the  case. 
What  is  the  measure  of  relief  which  the  law  secures  to  the  injured 
party;  or,  in  other  words,  can  he  recover  exemplary  damages?  We 
hold  that  he  can.  The  right  of  the  jury  to  give  exemplary  damages  for 
injuries  wantonly,  recklessly,  or  maliciously  inflicted,  is  as  old  as  the 
right  of  trial  by  jury  itself;  and  is  not,  as  many  seem  to  suppose,  an 
innovation  upon  the  rules  of  the  common  law.  It  was  settled  in  Eng- 
land more  than  a  century  ago. 

In  1763,  Lord  Chief  Justice  Pratt  (afterwards  Earl  of  Camden), 
with  whom  the  other  judges  concurred,  declared  that  the  jury  had 
done  right  in  giving  exemplary  damages.  Huckle  v.  Money,  2  Wilson, 
205. 

In  another  case  the  same  learned  judge  declared  with  emphasis,  that 
damages  are  designed  not  only  as  a  satisfaction  to  the  injured  person, 
but  likewise  as  a  punishment  to  the  guilty.  Campbell's  Lives  of  the 
Chancellors,  Am.  edition,  vol.  5,  p.  214. 

In  1814,  the  doctrine  of  punitive  damages  was  stringently  applied  in 
a  case  where  the  defendant,  in  a  state  of  intoxication,  forced  himself 
into  the  plaintiff's  company,  and  insolently  persisted  in  hunting  upon 
his  grounds.  The  plaintiff  recovered  a  verdict  for  five  hundred  pounds, 
the  full  amount  of  his  ad  damnum,  and  the  court  refused  to  set  it  aside. 
Mr.  Justice  Heath  remarked  in  this  case  that  he  remembered  a  case 
where  the  jury  gave  five  hundred  pounds  for  merely  knocking  a  man's 
hat  off,  and  the  court  refused  a  new  trial.  It  goes,  said  he,  to  prevent 
the  practice  of  dueling,  if  juries  are  permitted  to  punish  insult  by  ex- 
emplary damages.  Merest  v.  Harvey,  5  Taunt.  442.  See  also,  to  the 
same  effect,  Sears  v.  Lyon,  2  Starkie,  317,  decided  in  1818. 

In  1844,  Lord  Chief  Baron  Pollock  said,  that  in  actions  for  malicious 
injuries,  juries  had  always  been  allowed  to  give  what  are  called  vin- 
dictive damages.    Doe  v.  Filliter,  13  M.  &  W.  50. 

In  1858,  in  an  action  of  trespass  for  taking  personal  property  on  a 
fraudulent  bill  of  sale,  the  defendant's  counsel  contended  that  it  was 
not  a  case  for  the  application  of  the  doctrine  of  exemplary  damages; 


SECT.    VII.]  GODDARD    V.    GRAND    TRUXK    RAILWAY.  865 

but  the  court  held  otherwise.  No  doubt,  said  Pollock,  C.  R.,  it  was  a 
case  in  which  vindictive  damages  might  be  given.  Thomas  v.  Harris, 
3  H.  &  X.  961. 

In  1860,  in  an  action  for  willful  negligence,  the  defendant  contended 
that  the  plaintiff's  declaration  was  too  defective  to  entitle  him  to  ex- 
emplary damages;  but  the  court  held  otherwise;  and  the  judge  who 
tried  the  case  remarked  that  he  was  glad  the  court  had  come  to  the 
conclusion  that  it  was  competent  for  the  jury  to  give  exemplary  dam- 
ages, for  he  thought  the  defendant  had  acted  with  a  high  hand. 
Emblem  v.  Myers,  6  H.  &  N.  54. 

"Damages  exemplary,"  is  now  a  familiar  title  in  the  best  English 
law  reports.    See  6  H.  &  N.  969. 

It  was  the  firmness  with  which  Lord  Camden  (then  Chief  Justice 
Pratt)  maintained  and  enforced  the  right  of  the  jury  to  punish  \\'ith 
exemplary  damages  the  agents  of  Lord  Halifax  (then  Secretary  of 
State)  for  the  illegal  arrest  of  the  publishers  of  the  North  Briton,  that 
made  him  so  immensely  popular  in  England.  Nearly  or  quite  twenty 
of  those  cases  appear  to  have  been  tried  before  him,  in  all  of  which 
enormous  damages  were  given,  and  in  not  one  of  them  was  the  verdict 
set  aside.  In  one  of  the  cases  a  verdict  for  a  thousand  pounds  was 
returned  for  a  mere  nominal  imprisonment  at  the  house  of  the  officer 
making  the  arrest,  and  the  court  refused  to  set  it  aside.  Beardmore  v. 
Carrington,  2  Wilson,  244. 

"After  this,"  says  Lord  Campbell,  in  his  Li\-es  of  the  Chancellors, 
"he  became  the  idol  of  the  nation.  Grim  representations  of  him  laid 
down  the  law  from  sign-posts,  many  busts  and  prints  of  him  were  sold 
not  only  in  the  streets  of  the  metropolis,  but  in  the  provincial  towms; 
a  fine  portrait  of  him,  by  Sir  Joshua  Reynolds,  with  the  flattering  in- 
scription, 'in  honor  of  the  zealous  asserter  of  English  liberty  by  law,' 
was  placed  in  the  Guildhall  of  the  city  of  London;  addresses  of  thanks 
to  him  poured  in  from  all  quarters;  and  one  of  the  sights  of  London, 
which  foreigners  went  to  see,  was  the  great  Lord  Chief  Justice  Pratt." 

In  this  country,  perhaps  Lord  Camden  is  l)etter  known  as  one  of 
the  able  English  statesmen  who  so  eloquently  defended  the  American 
colonies  against  the  unjust  claim  of  the  mother  country  to  tax  them. 
Lord  Campbell  says  some  portions  of  his  speeches  upon  that  subject 
are  still  in  the  mouths  of  schoolboys.  But  in  P^ngland  his  immense 
popularity  originated  in  his  firm  and  vigorous  enforcement  of  the  doc- 
trine of  exemplary  damages.  And  we  cannot  discover  that  the  legality 
of  his  rulings  in  this  particular  was  ever  seriously  called  in  question. 
On  the  contrary,  we  find  it  admitted  by  his  political  opponents  that 
he  was  a  profound  jurist  and  an  able  and  upright  judge.  His  stringent 
enforcement  of  the  right  of  the  jury  to  punish  flagrant  wTongs  with 
exemplary  damages,  arrested  not  only  great  abuses  then  existing,  but 
it  has  had  a  salutary  influence  ever  since.  It  won  for  him  the  title  of 
the  "asserter  of  English  liberty  by  law." 


866  GODDARD   V.    GRAND   TRUNK   RAILWAY.  [CHAP.    VI. 

In  this  country  the  right  of  the  jury  to  give  exemplary  damages  has 
been  much  discussed.  It  seems  to  have  been  first  opposed  by  Mr. 
Theron  IVIetcalf  (afterwards  reporter  and  judge  of  the  supreme  court 
of  Massachusetts),  in  an  article  published  in  3  American  Jurist,  387, 
in  1830.  The  substance  of  this  article  was  afterwards  inserted  in  a 
note  to  Mr.  Greenleaf 's  work  on  Evidence.  Mr.  Sedgwick,  in  his  work 
on  Damages,  took  the  opposite  view,  and  sustained  his  position  by 
the  citation  of  numerous  authorities.  Professor  Greenleaf  replied  in 
an  article  in  the  Boston  Law  Reporter,  vol.  9,  p.  529.  Mr.  Sedgwick 
rejoined  in  the  same  periodical,  vol.  10,  p.  49.  Essays  on  different 
sides  of  the  question  were  also  published  in  3  American  Law  Magazine, 
N.  S.  537,  and  4  American  Law  IVIagazine,  N.  S.  61.  But  notwith- 
standing this  formidable  opposition,  the  doctrine  triumphed,  and  must 
be  regarded  a^  now  too  firmly  established  to  be  shaken  by  anything 
short  of  legislative  enactments.  In  fact  the  decisions  of  the  courts  are 
nearly  unanimous  in  its  favor. 

In  a  case  in  the  supreme  court  of  the  United  States,  Mr.  Justice 
Grier,  in  delivering  the  opinion  of  the  court,  says,  it  is  a  well-estab- 
lished principle  of  the  common  law,  that  in  all  actions  for  torts  the 
jury  may  inflict  what  are  called  punitive  or  exemplary  damages,  hav- 
ing in  view  the  enormity  of  the  offense  rather  than  the  measure  of 
compensation  to  the  plaintiff.  "  We  are  aAvare,"  the  judge  continues, 
"that  the  propriety  of  this  doctrine  has  been  questioned  by  some 
WTiters;  but  if  repeated  judicial  decisions -for  more  than  a  century  are 
to  be  received  as  the  best  exposition  of  what  the  law  is,  the  question 
will  not  admit  of  argument."    Day  v.  Woodworth,  13  Howard,  363. 

In  a  case  in  North  Carolina,  the  court  refer  to  the  note  in  Professor 
Greenleaf's  work  on  Evidence,  and  say  that  it  is  very  clearly  wrong 
with  respect  to  the  authorities;  and  in  their  judgment  WTong  on  prin- 
ciple; that  it  is  fortunate  that  while  juries  endeavor  to  give  ample 
compensation  for  the  injury  actually  received,  they  are  also  allowed 
such  full  discretion  as  to  make  verdicts  to  deter  others  from  flagrant 
violations  of  social  duty.  And  the  same  court  hold  that  the  wealth  of 
the  defendant  is  a  proper  circumstance  to  be  weighed  by  the  jury, 
because  a  thousand  dollars  may  be  a  less  punishment  to  one  man  than 
a  hundred  dollars  to  another.  In  one  case  the  same  court  sustained  a 
verdict  which  in  terms  assessed  the  actual  damages  at  $100,  and  the 
exemplary  damages  at  $1,000.  The  court  held  it  was  a  good  verdict 
for  SI, 100.  Pendleton  v.  Davis,  1  Jones  (N.  C),  98.  McAulay  v. 
Birkhead,  13  Iredell,  28.    Gilreath  r.  Allen,  10  Iredell,  67. 

In  fact,  Professor  Greenleaf  is  himself  an  authority  for  the  doctrine 
of  exemplary  damages.  Speaking  of  the  action  for  assault  and  battery, 
he  says  the  jury  are  not  confined  to  the  mere  corporal  injury,  but  may 
consider  the  malice  of  the  defendant,  the  insulting  character  of  his 
conduct,  the  rank  in  life  of  the  several  parties,  and  all  the  circum- 
stances of  the  outrage,  and  thereupon  award  such  exemplar}^  damages 


SECT.    VII.]  GODDARD    V.    GRAND    TRUNK   RAILWAY.  867 

as  the  circumstances  may  in  their  judgment  require.  2  Greenl.  on 
Ev.,  §  89. 

But  if  the  great  weight  of  Professor  Greenleaf's  authority  were  to 
be  regarded  as  opposed  to  the  doctrine,  we  have,  on  the  other  hand, 
the  great  weight  of  Chancellor  Kent's  opinion  in  favor  of  it.  He  says, 
surely  this  is  the  true  and  salutary  doctrine.  And  after  reviewing  the 
English  cases,  he  continues  by  saying  it  cannot  be  necessary  to  mul- 
tiply instances  of  its  application;  that  it  is  too  well  settled  in  practice, 
and  too  valuable  in  principle  to  be  called  in  question.  Tillotson  v. 
Cheetham,  3  Johnson,  56  and  64. 

This  brief  review  of  the  doctrine  of  exemplary  damages  is  not  so 
much  for  the  purpose  of  establishing  its  existence,  as  to  correct  the 
erroneous  impression  which  some  members  of  the  legal  profession  still 
seem  to  entertain,  that  it  is  a  modern  invention,  not  sanctioned  by  the 
rules  of  the  common  law.  We  think  every  candid-minded  person  must 
admit  that  it  is  no  new  doctrine;  that  its  existence  as  a  fundamental 
rule  of  the  common  law  has  been  recognized  in  England  for  more  than 
a  century;  that  it  has  been  there  stringently  enforced  under  circum- 
stances which  would  not  have  allowed  it  to  pass  unchallenged,  if  any 
pretext  could  have  been  found  for  doubting  its  validity;  and  that  in 
this  country,  notwithstanding  an  early  and  vigorous  opposition,  it  has 
steadily  progressed,  and  that  the  decisions  of  the  courts  are  now  nearly 
unanimous  in  its  favor.  It  was  sanctioned  in  this  State,  after  a  careful 
and  full  review  of  the  authorities,  in  Pike  v.  Billing,  48  Me.  539,  and 
cannot  now  be  regarded  as  an  open  question. 

But  it  is  said  that  if  the  doctrine  of  exemplary  damages  must  be 
regarded  as  established  in  suits  against  natural  persons  for  their  own 
willful  and  malicious  torts,  it  ought  not  to  be  applied  to  corporations 
for  the  torts  of  their  servants,  especially  where  the  tort  is  committed 
by  a  servant  of  so  low  a  grade  as  a  brakeman  on  a  railway  train,  and 
the  tortious  act  was  not  directly  nor  impliedly  authorized  nor  ratified 
by  the  corporation;  and  several  cases  are  cited  by  the  defendants' 
counsel,  in  which  the  courts  seem  to  have  taken  this  view  of  the  law; 
but  we  have  carefully  examined  these  cases,  and  in  none  of  them  was 
there  any  evidence  that  the  servant  acted  wantonly  or  maHciously; 
they  were  simply  cases  of  mistaken  duty;  and  what  these  same  courts 
would  have  done  if  a  case  of  such  gross  and  outrageous  insult  had 
been  before  them,  as  is  now  before  us,  it  is  impossil)le  to  say;  and  long 
experience  has  sho^\^l  that  nothing  is  more  dangerous  than  to  rely 
upon  the  abstract  reasoning  of  courts,  when  the  cases  before  them  did 
not  call  for  the  application  of  the  doctrines  which  their  reasoning  is 
intended  to  establish. 

We  have  given  to  this  objection  much  consideration,  as  it  was  our 
duty  to  do,  for  the  presiding  judge  declined  to  instruct  the  jury  that 
if  the  acts  and  words  of  the  defendants'  servant  were  not  directly  nor 
impliedly  authorized  nor  ratified  by  the  defendants,  the  plaintiff  could 


868  GODDARD    V.    GRAND    TRUNK    RAILWAY.  [CHAP.    VI. 

not  recover  exemplary  damages.  We  confess  that  it  seems  to  us  that 
there  is  no  class  of  cases  where  the  doctrine  of  exemplary  damages  can 
be  more  beneficially  applied  than  to  railroad  corporations  in  their 
capacity  of  common  carriers  of  passengers;  and  it  might  as  well  not 
be  applied  to  them  at  all  as  to  limit  its  application  to  cases  where  the 
servant  is  directly  or  impliedly  commanded  by  the  corporation  to 
maltreat  and  insult  a  passenger,  or  to  cases  where  such  an  act  is  di- 
rectly or  impliedly  ratified;  for  no  such  cases  will  ever  occur.  A  cor- 
poration is  an  imaginary  being.  It  has  no  mind  but  the  mind  of  its 
servants;  it  has  no  voice  but  the  voice  of  its  servants;  and  it  has  no 
hands  with  which  to  act  but  the  hands  of  its  servants.  All  its  schemes 
of  mischief,  as  well  as  its  schemes  of  public  enterprise,  are  conceived 
by  human  minds  and  executed  by  human  hands;  and  these  minds  and 
hands  are  its  servants'  minds  and  hands.  All  attempts,  therefore,  to 
distinguish  between  the  guilt  of  the  servant  and  the  guilt  of  the  cor- 
poration ;  or  the  malice  of  the  servant  and  the  malice  of  the  corporation ; 
or  the  punishment  of  the  servant  and  the  punishment  of  the  corpora- 
tion, is  sheer  nonsense;  and  only  tends  to  confuse  the  mind  and  con- 
found the  judgment.  Neither  guilt,  malice,  nor  suffering  is  predicable 
of  this  ideal  existence,  called  a  corporation.  And  yet  under  cover  of 
its  name  and  authority,  there  is  in  fact  as  much  wickedness,  and  as 
much  that  is  deserving  of  punishment,  as  can  be  found  anywhere  else. 
And  since  these  ideal  existences  can  neither  be  hung,  imprisoned, 
whipped,  or  put  in  the  stocks,  —  since  in  fact  no  corrective  influence 
can  be  brought  to  bear  upon  them  except  that  of  pecuniary  loss,  —  it 
does  seem  to  us  that  the  doctrine  of  exemplary  damages  is  more  bene- 
ficial in  its  application  to  them,  than  in  its  application  to  natural  per- 
sons. If  those  who  are  in  the  habit  of  thinking  that  it  is  a  terrible 
hardship  to  punish  an  innocent  corporation  for  the  wickedness  of  its 
agents  and  servants  will  for  a  moment  reflect  upon  the  absurdity  of 
their  own  thoughts,  their  anxiety  will  be  cured.  Careful  engineers 
can  be  selected  who  will  not  run  their  trains  into  open  draws;  and 
careful  baggage  men  can  be  secured  who  will  not  handle  and  smash 
trimks  and  band-boxes  as  is  now  the  universal  custom;  and  conductors 
and  brakemen  can  be  had  who  will  not  assault  and  insult  passengers; 
and  if  the  courts  will  only  let  the  verdicts  of  upright  and  intelligent 
juries  alone,  and  let  the  doctrine  of  exemplary  damages  have  its  legit- 
imate influence,  we  predict  these  great  and  growing  evils  will  be  very 
much  lessened,  if  not  entirelv  cured.  There  is  but  one  vulnerable 
point  about  these  ideal  existences,  called  corporations;  and  that  is, 
the  pocket  of  the  monied  power  that  is  concealed  behind  them;  and  if 
that  is  reached  they  will  wince.  When  it  is  thoroughly  understood 
that  it  is  not  profitable  to  employ  careless  and  indifterent  agents,  or 
reckless  and  insolent  servants,  better  men  will  take  their  places,  and 
not  before. 

It  is  our  judgment,  therefore,  that  actions  against  corporations,  for 


SECT.   VII.]  GODDARD   V.    GRAND   TRUNK   RAILWAY.  869 

the  willful  and  malicious  acts  of  their  agents  and  servants  in  executing 
the  business  of  the  corporation,  should  not  form  exceptions  to  the  rule 
allowing  exemplary  damages.  On  the  contrary,  we  think  this  is  the 
very  class  of  cases,  of  all  others,  where  it  will  do  the  most  good,  and 
where  it  is  most  needed.  And  in  this  conclusion  we  are  sustained  by 
several  of  the  ablest  courts  in  the  country. 

In  a  case  in  Mississippi,  the  plaintiflF  was  carried  four  hundred  yards 
beyond  the  station  where  he  had  told  the  conductor  he  wished  to  stop ; 
and  he  requested  the  conductor  to  run  the  train  back,  but  the  con- 
ductor refused,  and  told  the  plaintiff  to  get  off  the  train  or  he  would 
carry  him  to  the  next  station.  The  plaintiff  got  off  and  walked  back, 
carrying  his  valise  in  his  hand.  The  plaintiff  testified  that  the  con- 
ductor's manner  toward  him  was  insolent,  and  the  defendants  having 
refused  to  discharge  him,  the  jury  returned  a  verdict  for  four  thousand 
five  hundred  dollars,  and  the  court  refused  to  set  it  aside.  Thev  said 
the  right  of  the  jury  to  protect  the  public  by  punitive  damages,  and 
thus  prevent  these  great  public  blessings  from  being  converted  into 
the  most  dangerous  nuisances,  was  conclusively  -settled;  and  tliey 
hoped  the  verdict  would  have  a  salutary  influence  upon  their  future 
management.    Railroad,  in  Error,  v.  Hurst,  36  Miss.  660. 

In  New  Hampshire,  in  an  action  against  this  identical  road,  where, 
through  gross  carelessness,  there  was  a  collision  of  the  passenger  train 
with  a  freight  train,  and  the  plaintiff  was  thereby  injured,  the  judge  at 
jiisi  prius  instructed  the  jury  that  it  was  a  proper  case  for  exemplary 
damages;  and  the  full  court  sustained  the  ruling,  saying  it  w^as  a  sub- 
ject in  which  all  the  travelling  pviblic  were  deeply  interested ;  that  rail- 
roads had  practically  monopolized  the  transportation  of  passengers 
on  all  the  principal  lines  of  travel,  and  there  ought  to  be  no  lax  adminis- 
tration of  the  law  in  such  cases ;  and  that  it  would  be  difficult  to  suggest 
a  case  more  loudly  calling  for  an  exemplary  verdict.  [If  mere  careless- 
ness, however  gross,  calls  loudly  for  an  exemplary  verdict,  what  shall 
be  said  of  an  injury  that  is  willful  and  grossly  insulting?]  Hopkins  v. 
At.  &  St.  LawTence  Railroad,  36  New  Hamp.  9. 

Judge  Redfield,  in  his  very  able  and  useful  work  on  railways,  expresses 
the  opinion  that  there  is  quite  as  much  necessity  for  holding  these 
companies  liable  to  exemplary  damages  as  their  agents.  He  says  it  is 
difficult  to  perceive  w^hy  a  passenger,  w^ho  suffers  indignity  and  insult 
from  the  conductor  of  a  train,  should  be  compelled  to  show  an  actual 
ratification  of  the  act,  in  order  to  subject  the  company  to  exemplary 
damages.  (2  Redfield  on  Railways,  231,  note.)  But  if  such  a  ratifi- 
cation is  necessary,  he  thinjcs  the  corporation,  which  is  a  mere  legal 
entity,  inappreciable  to  sense,  should  be  regarded  as  always  present 
in  the  person  of  its  servant,  and  as  directing  and  ratifying  the  servant's 
acts  within  the  scope  of  his  employment,  and  thus  be  made  responsible 
for  his  willful  misconduct.    1  Redfield  on  Railways,  515  et  seq. 

And  in  a  recent  case  in  Maryland  (published  since  this  case  has  been 


870  GODDARD   V.    GRAND    TRUNK    RAILWAY.  [CHAP.    YI. 

pending  before  the  law  court),  a  case  in  all  respects  very  similar  to  the 
one  we  are  now  considering,  the  presiding  judge  was  requested  to  in- 
struct the  jury  that  the  plaintiff  was  not  entitled  to  recover  vindictive 
or  punitive  damages  from  the  defendants,  unless  they  expressly  or 
impliedly  participated  in  the  tortious  act,  authorizing  it  before  or 
approving  it  after  it  was  committed;  but  the  presiding  justice  refused 
so  to  instruct  the  jury,  and  the  full  court  held  that  the  request  was 
properly  rejected;  that  it  was  settled  that  where  the  injury  for  which 
compensation  in  damages  is  sought,  is  accompanied  b}^  force  or  malice, 
the  injured  party  is  entitled  to  recover  exemplary  damages.  Railroad 
V.  Blocher,  27  Md.  277. 

But  the  defendants  say  that  the  damages  awarded  by  the  jury  are 
excessive,  and  they  move  to  have  the  verdict  set  aside  and  a  new  trial 
granted  for  that  reason.  That  the  verdict  in  this  case  is  highly  punitive 
and  was  so  designed  by  the  jury,  cannot  be  doubted;  but  by  whose  judg- 
ment is  it  to  be  measured  to  determine  whether  or  not  it  is  excessive? 
What  standard  shall  be  used?  It  is  a  case  of  wanton  insult  and  injury 
to  the  plaintiff's  character,  and  feelings  of  self-respect,  and  the  damages 
can  be  measured  by  no  property  standard.  It  is  a  case  where  the  judg- 
ment will  be  very  much  influenced  by  the  estimation  in  which  character, 
self-respect,  and  freedom  from  insult  are  held.  To  those  who  set  a  very 
low  value  on  character,  and  think  that  pride  and  self-respect  exist  only 
to  become  objects  of  ridicule  and  sport,  the  damages  will  undoubtedly 
be  considered  excessive.  It  would  not  be  strange  if  some  such  persons, 
measuring  the  sensibilities  of  others  by  their  own  low  standard,  should 
view  this  verdict  with  envy,  and  regret  that  somebody  will  not  assault 
and  insult  them,  if  such  is  to  be  the  standard  of  compensation.  While 
others,  who  feel  that  character  and  self-respect  are  above  all  price,  more 
valuable  than  life  itself  even,  wdll  regard  the  verdict  as  none  too  large. 
We  repeat,  therefore,  that  it  is  a  case  where  men's  judgments  wnll  be 
likely  to  differ.  And  suppose  the  court  is  of  opinion  that  the  damages 
in  this  case  are  greater,  much  greater  even,  than  they  would  have 
awarded,  does  it  therefore  follow  that  the  judgment  of  the  court  is  to  be 
substituted  for  that  of  the  jury?  By  no  means.  It  is  the  "wnsdom  of 
the  law  to  suppose  that  the  judgment  of  the  jury  is  more  likely  to  be 
right  than  the  judgment  of  the  court,  for  it  is  to  the  former  and  not  to 
the  latter  that  the  duty  of  estimating  damages  is  confided.  Unless 
the  damages  are  so  large  as  to  satisfy  the  court  that  the  verdict  was  not 
the  result  of  an  honest  exercise  of  judgment,  they  have  no  right  to  set 
it  aside. 

A  careful  examination  of  the  case  fails  to  satisfy  us  that  the  jury 
acted  dishonestly,  or  that  they  made  any  mistake  in  their  application 
of  the  doctrine  of  exemplary  damages.  We  have  no  doubt  that  the 
highly  punitive  character  of  their  verdict  is  owing  to  the  fact  that,  after 
Jackson's  misconduct  was  known  to  the  defendants,  they  still  retained 
him  in  their  service.    The  jury  undoubtedly  felt  that  it  was  due  to  the 


^1 


r 


SECT,    VII.]  GODDARD   V.    GRAND    TRUNK    IL^ILWAY.  871 

plaintiff,  and  due  to  every  other  traveller  upon  that  road,  to  have  him 
instantly  discharged;  and  that  to  retain  him  in  his  place,  and  thus 
shield  and  protect  him  against  the  protestation  of  the  plaintiff,  made 
to  the  servant  himself  at  the  time  of  the  assault,  that  he  would  lose 
his  place,  was  a  practical  ratification  and  approval  of  the  servant's 
conduct,  and  would  be  so  understood  by  him  and  by  every  other  serv- 
ant on  the  road. 

And  when  we  consider  the  violent,  long-continued,  and  grossly 
insulting  character  of  the  assault;  that  it  was  made  upon  a  person 
in  feeble  health,  and  was  accompanied  by  language  so  coarse,  pro- 
fane, and  brutal;  that  so  far  as  appears  it  was  wholly  unprovoked; 
we  confess  we  are  amazed  at  the  conduct  of  the  defendants  in  not 
instantly  discharging  Jackson.  Thus  to  shield  and  protect  him  in 
his  insolence,  deeply  implicated  them  in  his  guilt.  It  was  such  in- 
difference to  the  treatment _the  plaintiff  had  received,  such  indifference 
to  the  treatment  that  other  travellers  might  receive,  such  indifference  to 
the  evil  influence  which  such  an  example  would  have  upon  the  servants 
of  this  and  other  lines  of  public  travel,  that  we  are  not  prepared  to  say 
the  jury  acted  unwisely  in  making  their  verdict  highly  punitive.  We 
cannot  help  feeling  that  if  we  should  interfere  and  set  it  aside,  our  action 
would  be  most  unfortunate  and  detrimental  to  the  public  interests.  On 
the  contrary,  if  we  allow  it  to  stand,  we  cannot  doubt  that  its  influence 
will  be  salutary.  It  will  be  an  impressive  lesson  to  these  defendants, 
and  to  the  managers  of  other  lines  of  public  travel,  of  the  risk  they  incur 
when  they  retain  in  their  service  servants  known  to  be  reckless,  ill- 
mannered,  and  unfit  for  their  places.  And  it  will  encourage  those  who 
may  suffer  insult  and  violence  at  the  hands  of  such  servants,  not  to 
retaliate  or  attempt  to  become  their  own  avengers,  as  is  too  often  done, 
but  to  trust  to  the  law  and  to  the  courts  of  justice,  for  the  redress  of 
their  grievances.  It  wall  say  to  them,  be  patient  and  law-abiding,  and 
your  redress  shall  surely  come,  and  in  such  measure  as  will  not  add 
insult  to  your  previous  injury. 

On  the  whole,  we  cannot  doubt  that  it  is  best  for  all  concerned 
that  this  verdict  be  allowed  to  stand. 

We  see  nothing  in  the  rulings  or  charge  of  the  presiding  judge,  of 
which  the  defendants  can  justly  complain.  And  there  is  nothing  to 
satisfy  us  that  the  jury  were  prejudiced  or  unduly  biased ;  or  that  they 
made  any  mistake  either  as  to'  the  facts  or  the  law.  Our  conclusion, 
therefore,  is,  that  the  exceptions  and  motion  must  be  overruled, 

Tapley,  J.,  delivered  a  dissenting  opinion.^ 

Motion  and  exceptions  overruled. 

1  "  The  damages  recovered  are  measured  in  all  cases  by  the  injury  caused.  Vin- 
dictive or  punitive  damages  are  never  allowed  in  this  State."  Holmes,  J.,  in  Burt  v. 
Advertiser  Newspaper  Co.,  154  Mass.  238,  245.  See  also  Murphy  v.  Hobbs,  7  Col. 
641;  Fay  v.  Parker,  53  N.  H.  342.  — Ed, 


872  HAINES  V.   SCHULTZ.  [CHAP.   VI. 


HAINES  V.   SCHULTZ. 
Supreme  Court  of  New  Jersey,  1888. 

[Reported  50  N.  J.  L.  481.] 

Garrison,  J.  The  defendant  below,  who  is  the  proprietor  of  the 
Morning  Call,  was  sued  in  libel  for  uttering  the  following  language  of 
and  concerning  the  plamtiff : 

"HOUSE   ROBBED. 
"a  young  lady  boarder  supposed  to  know  something  about  it. 

"Last  night,  while  Mr.  and  Mrs.  Richard  Krowley  were  at  Little 
Coney  Island,  their  house,  No.  3  Hamburgh  avenue,  was  entered  by 
some  one  who  got  away  with  a  considerable  amount  of  clothing.  Mr. 
Krowley  is  of  the  opinion  that  a  young  lady  boarder  named  Mamie 
Schultz  knows  something  about  the  theft.  The  girl  has  been  a  boarder 
at  the  house  for  about  seven  weeks ;  and  according  to  Dick's  statement 
Mamie  had  a  number  of  admirers,  and  on  several  occasions  she  has 
stayed  out  late  at  nights,  and  no  later  than  last  Sunday  night  she 
climbed  through  the  window  of  Mr.  and  IVIrs.  Krowley's  sleeping 
apartments,  and  Dick  is  of  the  opinion  that  she  gained  an  entrance 
through  the  same  window  last  night.  On  entering  the  house  Mrs. 
Krowley  discovered  a  bureau  drawer  and  a  clothes  closet  open  and  to 
her  surprise  found  that  the  house  had  been  ransacked  and  a  large 
number  of  pieces  of  her  underclothing,  together  with  ribbons  and 
other  articles,  were  missing.  Dick  visited  the  police  station  and  noti- 
fied Captain  Bimson,  who  advised  liim  to  go  before  the  recorder  this 
morning  and  make  a  complaint." 

,'  The  testimony  shows  that  this  article  was  written  by  a  reporter  in 
the  employ  of  the  defendant,  and  that  it  was  inserted  in  the  paper 
without  defendant's  knowledge,  his  first  intimation  of  it  being  the 
service  upon  him  of  the  declaration  in  this  cause. 

No  special  damages  were  shown. 

The  plaintiff  recovered  a  substantial  verdict  against  defendant. 

Five  exceptions  taken  by  defendant  at  the  trial  are  the  subject  of  as 
many  assignments  of  error. 

The  first  is  upon  the  refusal  of  the  court  to  order  a  nonsuit  at  the 
close  of  plaintiff's  case,  for  alleged  failure  of  proof.  This  exception 
may  be  dismissed  with  the  remark  that  the  question  as  to  whether  the 
language  published  tended  to  disgrace  the  plaintiff,  was  properly  left 
to  the  jury. 

The  other  assignments  are  based  upon  exceptions  to  the  charge  of 
the  court,  and  are  addressed  to  that  portion  of  the  charge  on  which 
the  law  as  to  exemplary  damages  is  stated. 


SECT.    VII.]  HAINES   V.   SCHULTZ.  873 

The  fourth  assignment  is  as  follows: 

"But  the  defendant  says,  'I  personally  had  no  hand  in  this.'  That 
is  true,  but  it  appears  that  Mr.  Keegan,  his  reporter,  wrote  it  and  had 
it  inserted  in  the  newspaper,  and  that  from  the  time  it  was  written  up 
to  the  present  day  the  defendant  has  never  had  a  word  of  blame  for 
Mr.  Keegan,  .and  ]Mr.  Keegan  still  remains  in  his  employ.  So  far  as 
appears,  his  conduct  is  approved  by  his  employer.  There  is  nothing 
in  the  case  to  show  that  it  is  disapproved.  If  you  believe,  then,  that 
Mr.  Keegan's  conduct  is  approved  by  his  employer  in  this  matter, 
you  have  a  right  to  see  what  Mr.  Keegan's  conduct  was  upon  this 
question  of  punishment." 

This  language  occurs  in  the  charge  of  the  court  after  the  rules  for 
the  admeasurement  of  compensatory  damages  have  been  announced 
to  the  jury. 

The  general  subject  of  exemplary  damages  is  introduced  with  the 
foUownng  remark:  "But  when  you  have  determined  what  sum  you  will 
award  her  for  compensation,  you  ask  j^ourself,  'Will  that  sum  punish 
the  defendant  adequately  for  his  conduct?'  You  turn  then  to  his 
conduct  and  see  what  it  is,  whether  it  will  call  for  any  punishment 
beyond  what  the  sum  that  may  be  awarded  Mamie  Schultz  as  com- 
pensation will  inflict."  Then  follows  a  series  of  instructions  as  to  the 
allowance  of  punitive  damages,  one  of  which  is  the  exception  under 
consideration. 

It  will  be  noticed  that  the  proposition  laid  down  by  the  court  is  not 
alone  that  the  defendant  may  be  visited  with  exemplary  damages  for 
language  inserted  in  his  paper,  although  without  his  knowledge  or 
consent;  but  that  the  imposition  of  punisliment  in  damages  will  be 
controlled  by  the  same  considerations  which  fix  his  liabilitv  for  the 
publication,  unless  the  defendant  adduces  proof  of  his  r/i^approval  of 
the  libelous  article.  In  other  words,  that  the  defendant  may  be  mulcted 
in  punitive  damages  upon  the  same  proof  which  established  his  liability 
for  compensatory  damages,  unless  he  shows  or  it  appears  that  he  dis- 
approved of  the  act  of  his  subordinate. 

The  liability  of  the  defendant  to  respond,  both  in  compensatory  and 
exemplary  damages,  in  a  proper  state  of  the  evidence,  is  not  questioned. 
It  is  the  proposal  to  relieve  the  plaintiff  of  the  burden  of  proof  and  to 
transfer  it  to  the  defendant  that  invites  discussion. 

Proprietors  of  newspapers  are  unquestionably  liable  in  law  for  what- 
ever appears  in  their  columns.  Libelous  pul)lication  is  a  WTongful  act; 
and  when  to  a  wrongful  act  we  add  testimony  from  which  a  wrongful 
motive  can  be  inferred,  punitive  damages  may  be  inflicted. 

But  the  maxim  respondeat  superior  is  a  rule  of  limitation  as  well  as 
of  liability.  If  a  principal  must,  on  the  one  hand,  answer  for  his 
agent's  wrongdoing,  on  the  other  hand  his  liability  is  circumscribed 
by  the  scope  of  his  agent's  employment,  unless  there  be  proof  of  a 
ratification  by  him  of  his  agent's  misconduct. 


874     LAKE  SHORE  &  MICHIGAN  SO.  RY.  CO.  V.  PRENTICE.      [CHAP.   VI. 

No  rule  of  law  is  better  established  than  this. 

The  same  principle  applies,  and  with  equal  force,  to  the  doctrine  of 
exemplary  damages. 

Without  stopping  to  re\'iew  the  history  of  this  class  of  so-called 
damages,  it  is  sufficient  to  say  that  the  right  to  award  them  rests 
primarily  upon  the  single  ground  —  wrongful  motive.  The  engrafting 
of  this  notion  on  to  personal  suits  has  resulted  in  an  anomalous  rule, 
the  doctrine  of  punitive  damages  being  a  sort  of  hybrid  between  a  dis- 
play of  ethical  indignation  and  the  imposition  of  a  criminal  fine.  But, 
whether  we  regard  it  in  the  one  light  or  the  other,  it  is  the  WTongful 
personal  intention  to  injure  that  calls  forth  the  penalty.  To  this 
wrongful  intent  knowledge  is  an  essential  prerequisite.  But  in  legal 
contemplation  previous  intent  is  presumed  from  ratification,  and  e 
converso  proof  of  ratification  must  be  made  where  a  previous  intent  is 
not  presumed. 

The  learned  judge  correctly  apprehended  this  rule  when  he  placed 
the  defendant's  liability  to  punishment  in  damages  upon  the  ground 
of  his  implied  approval  of  his  employee's  misconduct.  And  had  there 
been  any  proof  of  such  approval,  any  testimony  of  general  instructions, 
of  which  this  libel  was  the  outgrowth,  any  evidence  as  to  ratification, 
the  jury  might  have  been  warranted  in  inferring  a  wrongful  motive  to 
fit  the  wrongful  act.  But  absence  of  proof  of  his  disapproval,  absence 
of  proof  that  defendant  had  reproached  his  employee,  or  that  he  had 
discharged  him  —  in  fine,  absence  of  all  proof  bearing  on  the  essential 
question,  to  wit,  defendant's  motive  —  cannot  be  permitted  to  take 
the  place  of  evidence  without  leading  to  a  most  dangerous  extension 
of  the  doctrine,  respondeat  superior. 

A  plaintiff,  whose  claim  to  punitive  damages  rests  upon  a  wrongful 
motive  of  defendant,  not  inherent  in  the  offence  which  fixes  his  legal 
liability,  must  present  some  proof  from  which  such  wrongful  motive 
may  be  legally  inferred. 

Inasmuch  as  the  plaintiff  below  failed  to  do  this,  the  instruction  of 
the  court  upon  this  point  was  misleading. 

The  judgment  of  the  Circuit  Court  should  be  reversed. 


LAKE  SHORE  &  MICHIGAN  SOUTHERN 
RAILWAY  CO.  V.  PRENTICE. 

Supreme  Court  of  the  United  States,  1893. 

[Reported  147  U.  S.  101.] 

Gray,  J.  The  only  exceptions  taken  to  the  instructions  at  the 
trial,  which  have  been  argued  in  this  court,  are  to  those  on  the  sub- 
ject of  punitive  damages. 


SECT.  VII.]     LAKE  SHORE  &  MICHIGAN  SO.  RY.  CO.  V.  PRENTICE.      875 

The  single  question  presented  for  our  decision,  therefore,  is  whether 
a  railroad  corporation  can  be  charged  with  punitive  or  exemplary 
damages  for  the  illegal,  wanton  and  oppressive  conduct  of  a  conductor 
of  one  of  its  trains  towards  a  passenger. 

This  question,  like  others  affecting  the  liability  of  a  railroad  cor- 
poration as  a  common  carrier  of  goods  or  passengers  —  such  as  its 
right  to  contract  for  exemption  from  responsibility  for  its  own  negli- 
gence, or  its  liability  beyond  its  own  line,  or  its  liability  to  one  of  its 
servants  for  the  act  of  another  person  in  its  emploj-^ment  —  is  a  ques- 
tion, not  of  local  law,  but  of  general  jurisprudence,  upon  which  this 
court,  in  the  absence  of  express  statute  regulating  the  subject,  will 
exercise  its  own  judgment,  uncontrolled  by  the  decisions  of  the  courts 
of  the  several  States.  Railroad  Co.  v.  Lockwood,  17  Wall.  357,  368; 
Liverpool  Steam  Co.  v.  PhenLx  Ins.  Co.,  129  U.  S.  397,  443;  Myrick  v. 
Michigan  Central  Railroad,  107  U.  S.  102,  109;  Hough  v.  Railway  Co., 
100  U.  S.  213,  226. 

The  most  distinct  suggestion  of  the  doctrine  of  exemplary  or  puni- 
tive damages  in  England  before  the  American  Revolution  is  to  be  found 
in  the  remarks  of  Chief  Justice  Pratt  (afterwards  Lord  Camden)  in 
one  of  the  actions  against  the  King's  messengers  for  trespass  and  im- 
prisonment under  general  warrants  of  the  Secretary  of  State,  in  which, 
the  plaintiff's  counsel  having  asserted,  and  the  defendant's  counsel 
having  denied,  the  right  to  recover  "exemplary  damages,"  the  Chief 
Justice  instructed  the  jury  as  follows :  "  I  have  formerly  delivered  it 
as  my  opinion  on  another  occasion,  and  I  still  continue  of  the  same 
mind,  that  a  jury  have  it  in  their  power  to  give  damages  for  more  than 
the  injury  received.  Damages  are  designed  not  only  as  a  satisfaction 
to  the  injured  person,  but  likew^se  as  a  punishment  to  the  guilty,  to 
deter  from  any  such  proceeding  for  the  future,  and  as  a  proof  of  the 
detestation  of  the  jury  to  the  action  itself."  Wilkes  v.  Wood,  Lofft,  1, 
18,  19;  S.  C.  19  Howell's  State  Trials,  1153,  1167.  See  also  Huckle  v. 
Money,  2  Wilson,  205,  207;  S.  C,  Sayer  on  Damages,  218,  221.  The 
recovery  of  damages  beyond  compensation  for  the  injury  received, 
by  way  of  punishing  the  guilty,  and  as  an  example  to  deter  others  from 
offending  in  like  manner,  is  here  clearly  recognized. 

In  this  court,  the  doctrine  is  well  settled,  that  in  actions  of  tort  the 
jury,  in  addition  to  the  sum  awarded  by  way  of  compensation  for  the 
plaintiff's  injury,  may  award  exemplary,  punitive  or  vindicti\'e  damages, 
sometimes  called  smart  money,  if  the  defendant  has  acted  wantonly, 
or  oppressively,  or  with  such  malice  as  implies  a  spirit  of  mischief  or 
criminal  indifference  to  civil  obligations.  But  such  guilty  intention 
on  the  part  of  the  defendant  is  required  in  order  to  charge  him  with 
exemplary  or  punitive  damages.  The  Amiable  Nancy,  3  Wheat.  546, 
558,  559;  Day  v.  Woodworth,  13  How.  363,  371;  Philadelphia  &c. 
Railroad  v.  Quigley,  21  How.  202,  213,  214;  Milwaukee  &  St.  Paul 
Railway  v.  Arms,  91  U.  S.  489,  493,  495;  Missouri  Pacific  Railway  v. 


87G     LAKE  SHORE  &  MICHIGAN  SO.  RY.  CO.   V.  PRENTICE.      [CIL\P.    VI. 

Humes,  115  U.  S.  512,  521;  Barry  v.  Edmunds,  116  U.  S.  550,  562, 
563;  Denver  &  Rio  Grande  Railway  v.  Harris,  122  U.  S.  597,  609,  610; 
Minneapolis  &  St.  Louis  Railway  v.  Beckwith,  129  U.  S.  26,  36. 

Exemplary  or  punitive  damages,  being  awarded,  not  by  way  of 
compensation  to  the  sufferer,  but  by  way  of  punishment  of  the  offender, 
and  as  a  warning  to  others,  can  only  be  awarded  against  one  who  has 
participated  in  the  offence.  A  principal,  therefore,  though  of  course 
liable  to  make  compensation  for  injuries  done  by  his  agent  within  the 
scope  of  his  employment,  cannot  be  held  liable  for  exemplary  or  puni- 
tive damages,  merely  by  reason  of  wanton,  oppressive  or  malicious 
intent  on  the  part  of  the  agent.  This  is  clearly  shown  by  the  judgment 
of  this  court  in  the  case  of  The  Amiable  Nancy,  3  Wheat.  546. 

In  that  case,  upon  a  libel  in  admiralty  by  the  owner,  master,  super- 
cargo and  crew  of  a  neutral  \-essel  against  the  owners  of  an  American 
privateer,  for  illegally  and  wantonly  seizing  and  plundering  the  neutral 
vessel  and  maltreating  her  officers  and  crew,  Mr.  Justice  Story,  speak- 
ing for  the  court,  in  1818,  laid  down  the  general  rule  as  to  the  lia- 
bility for  exemplary  or  \-indictive  damages  by  way  of  punishment,  as 
follows :  "  Upon  the  facts  disclosed  in  the  evidence  this  must  be  pro- 
nounced a  case  of  gross  and  wanton  outrage,  without  any  just 
provocation  or  excuse.  Under  such  circumstances,  the  honor  of  the 
country  and  the  duty  of  the  court  equally  require  that  a  just  com- 
pensation should  be  made  to  the  unoffending  neutrals,  for  all  the 
injuries  and  losses  actually  sustained  by  them.  And  if  this  were  a 
suit  against  the  original  wrongdoers,  it  might  be  proper  to  go  yet  far- 
ther, and  visit  upon  them,  in  the  shape  of  exemplary  damages,  the 
proper  punishment  which  belongs  to  such  lawless  misconduct.  But  it 
is  to  be  considered  that  this  is  a  suit  against  the  OAvners  of  the  pri- 
vateer, upon  whom  the  law  has,  from  motives  of  policy,  devolved  a 
responsibility  for  the  conduct  of  the  officers  and  crew  employed  by 
them,  and  yet,  from  the  nature  of  the  service,  they  can  scarcely  ever 
be  able  to  secure  to  themselves  an  adequate  indemnity  in  cases  of  loss. 
They  are  innocent  of  the  demerit  of  this  transaction,  having  neither 
directed  it,  nor  countenanced  it,  nor  participated  in  it  in  the  slightest 
degree.  Under  such  circumstances,  we  are  of  the  opinion  that  they 
are  bound  to  repair  all  the  real  injuries  and  personal  WTongs  sustained 
by  the  libellants,  but  they  are  not  bound  to  the  extent  of  A^indictive 
damages."     3  Wheat.  558,  559. 

The  rule  thus  laid  down  is  not  peculiar  to  courts  of  admiralty;  for, 
as  stated  by  the  same  eminent  judge  two  years  later,  those  courts 
proceed,  in  cases  of  tort,  upon  the  same  principles  as  courts  of  common 
law,  in  allowing  exemplary  damages,  as  well  as  damages  by  way  of 
compensation  or  remuneration  for  expenses  incurred,  or  injuries  or 
losses  sustained,  by  the  misconduct  of  the  other  party.  Boston  Manuf. 
Co.  V.  Fiske,  2  Mason,  119,  121.  In  Keene  v.  Lizardi,  8  Louisiana,  26, 
33,  Judge  Martin  said:  "It  is  true,  juries  sometimes  very  properly 


SECT.  VII.]     LAKE  SHORE  &  MICHIGAN  SO.  RY.  CO.  V.  PRENTICE.      877 

give  what  is  called  smart  money.  They  are  often  warranted  in  giving 
vindictive, damages  as  a  punishment  inflicted  for  outrageous  conduct. 
But  this  is  onI\'  justifiable  in  an  action  against  the  wrongdoer,  and 
not  against  persons  who,  on  account  of  their  relation  to  the  offender, 
are  only  consequentially  liable  for  his  acts,  as  the  principal  is  respon- 
sible for  the  acts  of  his  factor  or  agent."  To  the  same  effect  are:  The 
State  Rights,  Crabbe,  22,  47,  48;  The  Golden  Gate,  McAllister,  104; 
Wardrobe  v.  California  Stage  Co.,  7  Cal.  118;  Boulard  v.  Calhoun,  13 
La.  Ann.  445;  Detroit  Post  v.  McArthur,  16  Mich.  447;  Grund  v.  Van 
Vleck,  69  111.  478,  481;  Becker  v.  Dupree,  75  111.  167;  Rosenkrans 
V.  Barker,  115  111.  331;  Kirksey  v.  Jones,  7  Ala.  622,  629;  Pollock  v. 
Gantt,  69  Ala.  373,  379;  Eviston  v.  Cramer,  57  Wis.  570;  Haines  v. 
Schultz,  21  Vroom,  (50  N.  J.  Law,)  481 ;  McCarty  v.  De  Armit,  99  Penn. 
St.  63,  72;  Clark  v.  Newsam,  1  Exch.  131,  140;  Clissold  v.  Machell, 
26  Upper  Canada,  Q.  B.  422. 

The  rule  has  the  same  application  to  corporations  as  to  individuals. 
This  court  has  often,  in  cases  of  this  class,  as  well  as  in  other  cases, 
affirmed  the  doctrine  that  for  acts  done  by  the  agents  of  a  corporation, 
in  the  course  of  its  business  and  of  their  employment,  the  corporation 
is  responsible,  in  the  same  manner  and  to  the  same  extent,  as  an  in- 
dividual is  responsible  under  similar  circumstances.  Philadelphia  &c. 
Railroad  v.  Quigley,  21  How.  202,  210;  National  Bank  r.  Graham,  100 
U.  S.  699,  702;  Salt  Lake  City  v.  Hollister,  118  U.  S.  256,  261;  Denver 
&  Rio  Grande  Railway  v.  Harris,  122  U.  S.  597,  608. 

A  corporation  is  doubtless  liable,  like  an  individual,  to  make  com- 
pensation for  any  tort  committed  by  an  agent  in  the  course  of  his  em- 
ployment, although  the  act  is  done  wantonly  and  recklessly,  or  against 
the  express  orders  of  the  principal.  Philadelphia  &  Reading  Railroad 
V.  Derby,  14  How.  468;  New  Jersey  Steamboat  Co.  v.  Brockett,  121 
LT.  S.  637;  Howe  r.  Newmarch,  12  Allen,  49;  Ramsden  v.  Boston  & 
Albany  Railroad,  104  Mass.  117.  A  corporation  may  even  be  held 
liable  for  a  lil^el,  or  a  malicious  prosecution,  by  its  agent  within  the 
scope  of  his  employment;  and  the  malice  necessary  to  support  either 
action,  if  proved  in  the  agent,  may  be  imputed  to- the  corporation. 
Philadelphia  &c.  Railroad  r.  Quigley,  21  How.  202,  211;  Salt  Lake 
City  v.  Hollister,  118  U.  S.  256,  262;  Reed  v.  Home  Savings  Bank,  130 
Mass.  443,  445,  and  cases  cited;  Krulevitz  r.  Eastern  Railroad,  140 
Mass.  573;  McDermott  v.  Evening  Journal,  14  ^'room,  (43  N.  J.  Law,) 
488,  and  15  Vroom,  (44  N.  J.  Law,)  430;  Bank  of  New  South  Wales  v. 
Owston,  4  App.  Cas.  270.  But,  as  well  observed  by  Mr.  Justice  Eield, 
now  Chief  Justice  of  Massachusetts:  "The  logical  difficulty  of  imput- 
ing the  actual  malice  or  fraud  of  an  agent  to  his  principal  is  perhaps 
less  when  the  principal  is  a  person  than  when  it  is  a  corporation;  still 
the  foundation  of  the  imputation  is  not  that  it  is  inferred  that  the 
principal  actually  participated  in  the  malice  or  fraud,  but,  the  act 
having  been  done  for  his  benefit  by  his  agent  acting  within  the  scope 


878      LAKE  SHORE  &  MICHIGAN  SO.  RY.  CO.  V.  PRENTICE.      [CHAP.    VI. 

of  his  employment  in  his  business,  it  is  just  that  he  should  be  held 
responsible  for  it  in  damages."  Lothrop  v.  Adams,  133  Mass.  471, 
480,  481. 

Though  the  principal  is  liable  to  make  compensation  for  a  libel 
published  or  a  malicious  prosecution  instituted  by  his  agent,  he  is  not 
liable  to  be  punished  by  exemplary  damages  for  an  intent  in  which 
he  did  not  participate.  In  Detroit  Post  v.  McArthur,  in  Eviston  v. 
Cramer,  and  in  Haines  v.  Schultz,  above  cited,  it  was  held  that  the 
publisher  of  a  newspaper,  when  sued  for  a  libel  published  therein  by 
one  of  his  reporters  without  his  knowledge,  was  liable  for  compensa- 
tory damages  only,  and  not  for  punitive  damages,  unless  he  approved 
or  ratified  the  publication;  and  in  Haines  v.  Schultz  the  Supreme  Court 
of  New  Jersey  said  of  punitive  damages:  "The  right  to  award  them 
rests  primarily  vipon  the  single  ground  —  WTongful  motive."  "  It  is 
the  wrongful  personal  intention  to  injure  that  calls  forth  the  penalty. 
To  this  wrongful  intent  knowledge  is  an  essential  prerequisite."  "Ab- 
sence of  all  proof  bearing  on  the  essential  question,  to  wit,  defendant's 
motive  —  cannot  be  permitted  to  take  the  place  of  evidence,  without 
leading  to  a  most  dangerous  extension  of  the  doctrine  respondeat 
superior."  21  Vroom,  (50  N.  J.  Law,)  484,  485.  Whether  a  principal 
can  be  criminally  prosecuted  for  a  libel  published  by  his  agent  with- 
out his  participation  is  a  question  on  which  the  authorities  are  not 
agreed;  and  where  it  has  been  held  that  he  can,  it  is  a"dinitted  to  be 
an  anomaly  in  the  criminal  law.  Commonwealth  i\  Morgan,  107 
Mass.  199,  "203;  Regina  v.  Holbrook,  3  Q.  B.  D.  60,  63,  64,  70,  and  4 
Q.  B.  D.  42,  51,  60. 

No  doubt,  a  corporation,  like  a  natural  person,  may  be  held  liable 
in  exemplary  or  punitive  damages  for  thie  act  of  an  agent  within  the 
scope  of  his  employment,  provided  the  criminal  intent,  necessary  to 
warrant  the  imposition  of  such  damages,  is  brought  home  to  the  cor- 
poration. Philadelphia  &c.  Railroad  v.  Quigley,  Milwaukee  &  St. 
Paul  Railway  v.  Arms,  and  Denver  &  Rio  Grande  Railway  v.  Harris, 
above  cited;  Caldwell  v.  New  Jersey  Steamboat  Co.,  47  N.  Y.  282; 
Bell  V.  Midland  Railway,  10  C.  B.  \n.  S.)  287;  S.  C.  4  Law  Times 
(N.  S.)  293. 

Independently  of  this,  in  the  case  of  a  corporation,  as  of  an  indi- 
vidual, if  any  wantonness  or  mischief  on  the  part  of  the  agent,  acting 
within  the  scope  of  his  employment,  causes  additional  injury  to  the 
plaintiff  in  body  or  mind,  the  principal  is,  of  course,  liable  to  make 
compensation  for  the  whole  injury  suffered.  Kennon  v.  Gilmer,  131 
U.  S.  22;  Meagher  v.  Driscoll,  99  Mass.  281,  285;  Smith  v.  Holcomb, 
99  Mass.  552;  Hawes  v.  Knowles,  114  Mass.  518;  Campbell  v.  Pullman 
Car  Co.,  42  Fed.  Rep.  484. 

In  the  case  at  bar,  the  defendant's  counsel  having  admitted  in  open 
court  "that  the  arrest  of  the  plaintiff  was  wrongful,  and  that  he  was 
entitled  to  recover  actual  damages  therefor,"  the  jury  were  rightly 


SECT.  VII.]     LAKE  SHORE  &  MICHIGAN  SO.  RY.  CO.  V.  PRENTICE.      879 

instructed  that  he  was  entitled  to  a  verdict  which  would  fully  com- 
pensate him  for  the  injuries  sustained,  and  that  in  compensating  him 
the  jury  were  authorized  to  go  beyond  his  outlay  in  and  about  this 
suit,  and  to  consider  the  humiliation  and  outrage  to  which  he  had  been 
subjected  by  arresting  him  publicly  without  warrant  and  without 
cause,  and  by  the  conduct  of  the  conductor,  such  as  his  remark  to  the 
plaintiff's  wife. 

But  the  court,  going  beyond  this,  distinctly  instructed  the  jury 
that  "after  agreeing  upon  the  amount  which  will  fully  compensate 
the  plaintiff  for  his  outlay  and  injured  feelings,"  they  might  "add 
something  by  way  of  punitive  damages  against  the  defendant,  which 
is  sometimes  called  smart  money,"  if  they  were  "satisfied  that  the 
conductor's  conduct  was  illegal,  wanton  and  oppressive." 

The  jury  were  thus  told,  in  the  plainest  terms,  that  the  corporation 
was  responsible  in  punitive  damages  for  wantonness  and  oppression 
on  the  part  of  the  conductor,  although  not  actually  participated  in  by 
the  corporation.  This  ruling  appears  to  us  to  be  inconsistent  with 
the  principles  above  stated,  unsupported  by  any  decision  of  this  court, 
and  opposed  to  the  preponderance  of  well  considered  precedents. 

In  Philadelphia  &  Reading  Railroad  v.  Derby,  which  was  an  action 
by  a  passenger  against  a  railroad  corporation  for  a  personal  injury 
suffered  through  the  negligence  of  its  servants,  the  jury  were  instructed 
that  "  the  damages,  if  any  were  recoverable,  are  to  be  confined  to  the 
direct  and  immediate  consequences  of  the  injury  sustained;"  and  no 
exception  was  taken  to  this  instruction.     14  How.  470,  471. 

In  Philadelphia  &c.  Railroad  v.  Quigley,  which  was  an  action  against 
a  railroad  corporation  for  a  libel  published  by  its  agents,  the  jury  re- 
turned a  verdict  for  the  plaintiff  under  an  instruction  that  "  they  are  not 
restricted  in  giving  damages  to  the  actual  positive  injury  sustained  by 
the  plaintiff,  but  may  give  such  exemplary  damages  if  any,  as  in  their 
opinion  are  called  for  and  justified,  in  view  of  all  the  circumstances  in 
this  case,  to  render  reparation  to  the  plaintiff,  and  act  as  an  adequate 
punishment  to  the  defendant."  This  court  set  aside  the  verdict,  be- 
cause the  instruction  given  to  the  jury  did  not  accurately  define  the 
measure  of  the  defendant's  liability;  and,  speaking  by  Mr.  Justice 
Campbell,  stated  the  rules  applicable  to  the  case  in  these  words:  "For 
acts  done  by  the  agents  of  the  corporation,  either  in  contractu  or  in 
delicto,  in  the  course  of  its  business  and  of  their  employment,  the  cor- 
poration is  responsible,  as  an  indi\idual  is  responsible  under  similar 
circumstances."  "Whenever  the  injury  complained  of  has  been  in- 
flicted maliciously  or  wantonly,  and  with  circumstances  of  contumely 
or  indignity,  the  jury  are  not  limited  to  the  ascertainment  of  a  simple 
compensation  for  the  WTong  committed  against  the  aggrieved  person. 
But  the  malice  spoken  of  in  this  rule  is  not  merely  the  doing  of  an  un- 
lawful or  injurious  act.  The  word  implies  that  the  act  complained  of 
was  conceived  in  the  spirit  of  mischief,  or  criminal  indifference  to  civil 


880      LAKE  SHORE  &  MICHIGAN  SO.  RY.  CO.  V.  PRENTICE.     [CHAP.    VI. 

obligations.  Nothing  of  this  kind  can  be  imputed  to  these  defendants." 
21  How.  210,  213,  214. 

In  Milwaukee  &  St.  Paul  Railway  v.  Arms,  which  was  an  action 
against  a  railroad  corporation,  by  a  passenger  injured  in  a  collision 
caused  by  the  negligence  of  the  servants  of  the  corporation,  the  jury 
were  instructed  thus :  "  If  you  find  that  the  accident  was  caused  by 
the  gross  negligence  of  the  defendant's  servants  controlling  the  train, 
you  may  give  to  the  plaintiff  punitive  or  exemplary  damages."  This 
court,  speaking  by  ^Ir.  Justice  Davis,  and  appro\ing  and  applying 
the  rule  of  exemplary  damages,  as  stated  in  Quigley's  case,  held  that 
this  was  a  misdirection,  and  that  the  failure  of  the  employes  to  use  the  * 
care  that  was  required  to  avoid  the  accident,  "  whether  called  gross  or 
ordinary  negligence,  did  not  authorize  the  jury  to  \'isit  the  company  ^. 

with  damages  beyond  the  limit  of  compensation  for  the  injury  actually 
inflicted.  To  do  tliis,  there  must  have  ]>een  some  wilful  misconduct, 
or  that  entire  want  of  care  which  would  raise  the  presumption  of  a 
conscious  indifference  to  consequences.  Nothing  of  this  kind  can  be 
imputed  to  the  persons  in  charge  of  the  train;  and  the  court,  therefore, 
misdirected  the  jury."     91  U.  S.  495. 

In  Denver  &  Rio  Grande  Railway  r.  Harris,  the  railroad  company, 
as  the  record  showed,  by  an  armed  force  of  several  hundred  men,  acting 
as  its  agents  and  employes,  and  organized  and  commanded  by  its  ^^ce- 
president  and  assistant  general  manager,  attacked  with  deadly  weapons 
the  agents  and  employes  of  another  company  in  possession  of  a  rail- 
road, and  forcibly  drove  them  out,  and  in  so  doing  fired  upon  and  in- 
jured one  of  them,  who  thereupon  brought  an  action  against  the 
corporation,  and  recovered  a  verdict  and  judgment  under  an  instruc- 
tion that  the  jury  "were  not  limited  to  compensatory  damages,  but 
could  give  punitive  or  exemplary  damages,  if  it  was  found  that  the 
defendant  acted  with  bad  intent,  and  in  pursuance  of  "an  imlawful 
purpose  to  forcibly  take  possession  of  the  railway  occupied  by  the 
other  company,  and  in  so  doing  shot  the  plaintiff."  This  court,  speak- 
ing by  Mr.  Justice  Harlan,  quoted  and  approved  the  rules  laid  doA\'Ti 
in  Quigley's  case,  and  affirmed  the  judgment,  not  because  any  evil 
intent  on  the  part  of  the  agents  of  the  defendant  corporation  could  of 
itself  make  the  corporation  responsible  for  exemplary  or  punitive 
damages,  but  upon  the  single  ground  that  the  eindence  clearly  showed 
that  the  corporation,  by  its  governing  officers,  participated  in  and 
directed  all  that  was  planned  and  done.     122  U.  S.  610. 

The  president  and  general  manager,  or,  in  his  absence,  the  vice- 
president  in  his  place,  actually  wielding  the  whole  executive  power  of 
the  corporation,  may  well  be  treated  as  so  far  representing  the  cor- 
poration and  identified  with  it,  that  any  wanton,  malicious  or  oppres- 
sive intent  of  his,  in  doing  UTongful  acts  in  behalf  of  the  corporation 
to  the  injury  of  others,  may  be  treated  as  the  intent  of  the  corporation 
itself.     But  the  conductor  of  a  train,  or  other  subordinate  agent  or 


SECT.  VII.]     LAKE  SHORE  &  MICHIGAN  SO.  RY.  CO.  V.  PRENTICE.      881 

servant  of  a  railroad  corporation,  occupies  a  very  different  position, 
and  is  no  more  identified  with  his  principal,  so  as  to  affect  the  latter 
■with  his  owTi  unlawful  and  criminal  intent,  than  any  agent  or  servant 
standing  in  a  corresponding  relation  to  natural  persons  carrying  on  a 
manufactory,  a  mine,  or  a  house  of  trade  or  commerce. 

The  law  applicable  to  this  case  has  been  found  nowhere  better 
stated  than  by  Mr.  Justice  Brayton,  afterwards  Chief  Justice  of 
Rhode  Island,  in  the  earliest  reported  case  of  the  kind,  in  which  a 
passenger  sued  a  railroad  corporation  for  his  WTongful  expulsion  from 
a  train  by  the  conductor,  and  recovered  a  verdict,  but  excepted  to  an 
instruction  to  the  jury  that  "  punitive  or  vindictive  damages,  or  smart 
money,  were  not  to  be  allowed  as  against  the  principal,  unless  the 
principal  participated  in  the  WTongful  act  of  the  agent,  expressly'  or 
impliedly,  by  his  conduct  authorizing  it  or  approving  it,  either  before 
or  after  it  was  committed."  This  instruction  was  held  to  be  right,  for 
the  following  reasons :  "  In  cases  where  punitive  or  exemplary  damages 
have  been  assessed,  it  has  been  done  upon  evidence  of  such  wilfulness, 
recklessness  or  udckedness,  on  the  part  of  the  party  at  fault,  as  amounted 
to  criminality,  which  for  the  good  of  society  and  warning  to  the  in- 
dividual ought  to  be  punished.  If  in  such  cases,  or  in  any  case  of  a 
civil  nature,  it  is  the  policy  of  the  law  to  visit  upon  the  offender  such 
exemplary  damages  as  will  operate  as  punisliment  and  teach  the 
lesson  of  caution  to  prevent  a  repetition  of  criminality,  yet  we  do  not 
see  how  such  damages  can  be  allowed,  where  the  principal  is  prose- 
cuted for  the  tortious  act  of  his  servant,  unless  there  is  proof  in 
the  cause  to  implicate  the  principal  and  make  him  particeps  criminis 
of  his  agent's  act.  No  man  should  be  punished  for  that  of  which  he 
is  not  guilty."  "Where  the  proof  does  not  implicate  the  principal, 
and,  however  ^^^cked  the  servant  may  have  been,  the  principal  neither 
expressly  nor  impliedly  authorizes  or  ratifies  the  act,  and  the  crimi- 
nality of  it  is  as  much  against  him  as  against  any  other  member  of 
society,  we  think  it  is  quite  enough,  that  he  shall  be  liable  in  com- 
pensatory damages,  for  the  injury  sustained  in  consequence  of  the 
WTongful  act  of  a  person  acting  as  his  servant."  Hagan  r.  Providence 
&  Worcester  Railroad,  3  R.  I.  88,  91. 

The  like  view  was  expressed  by  the  Court  of  Appeals  of  New  York, 
in  an  action  brought  against  a  railroad  corporation  by  a  passenger  for 
injuries  suffered  by  the  neglect  of  a  switchman,  who  was  intoxicated 
at  the  time  of  the  accident.  It  was  held  that  e\-idence  that  the  switch- 
man was  a  man  of  intemperate  habits,  which  was  known  to  the  agent 
of  the  company,  having  the  power  to  employ  and  discharge  him  and 
other  subordinates,  was  competent  to  support  a  claim  for  exemplary 
damages;  but  that  a  direction  to  the  jury  in  general  terms  that  in 
awarding  damages  they  might  add  to  full  compensation  for  the  injury 
"such  sum  for  exemplary  damages  as  the  case  calls  for,  depending  in 
a  great  measure  of  course  upon  the  conduct  of  the  defendant,"  entitled 


882     LAKE  SHORE  &  MICHIGAN  SO.  RY.  CO.  V.  PRENTICE.       [CHAP.  VI. 

the  defendant  to  a  new  trial;  and  Chief  Justice  Church,  deUvering  the 
unanimous  judgment  of  the  court,  stated  the  rule  as  follows :  "  For  in- 
juries by  the  negligence  of  a  servant  while  engaged  in  the  business  of 
the  master,  within  the  scope  of  his  employment,  the  latter  is  liable  for 
compensatory  damages;  but  for  such  negligence,  however  gross  or 
culpable,  he  is  not  liable  to  be  punished  in  punitive  damages  unless  he 
is  also  chargeable  with  gross  misconduct.  Such  misconduct  may  be 
established  by  showing  that  the  act  of  the  servant  was  authorized  or 
ratified,  or  that  the  master  employed  or  retained  the  servant,  knowing 
that  he  was  incompetent,  or,  from  bad  habits,  unfit  for  the  position  he 
occupied.  Something  more  than  ordinary  negligence  is  requisite;  it 
must  be  reckless  and  of  a  criminal  nature,  and  clearly  established. 
Corporations  may  incur  this  liability  as  well  as  private  persons.  If  a 
railroad  company,  for  instance,  knowingly  and  wantonly  employs  a 
drunken  engineer  or  switchman,  or  retains  one  after  knowledge  of  his 
habits  is  clearly  brought  home  to  the  company,  or  to  a  superintending 
agent  authorized  to  employ  and  discharge  him,  and  injury  occurs  by 
reason  of  such  habits,  the  company  may  and  ought  to  be  amenable  to 
the  severest  rule  of  damages;  but  I  am  not  aware  of  any  principle 
which  permits  a  jury  to  award  exemplary  damages  in  a  case  which 
does  not  come  up  to  this  standard,  or  to  graduate  the  amount  of  such 
damages  by  their  views  of  the  propriety  of  the  conduct  of  the  defendant, 
unless  such  conduct  is  of  the  character  before  specified."  Cleghorn  v. 
New  York  Central  Railroad,  56  N.  Y.  44,  47,  48. 

Similar  decisions,  denying  upon  like  grounds  the  liability  of  railroad 
companies  and  other  corporations,  sought  to  be  charged  with  punitive 
damages  for  the  wanton  or  oppressive  acts  of  their  agents  or  ser- 
vants, not  participated  in  or  ratified  by  the  corporation,  have  been 
made  by  the  courts  of  New  Jersey,  Pennsylvania,  Delaware,  Mich- 
igan, Wisconsin,  California,  Louisiana,  Alabama,  Texas  and  West 
Virginia. 

It  must  be  admitted  that  there  is  a  wide  divergence  in  the  decisions 
of  the  state  courts  upon  this  question,  and  that  corporations  have  been 
held  liable  for  such  damages  under  similar  circumstances  in  New  Hamp- 
shire, in  Maine,  and  in  many  of  the  Western  and  Southern  States. 
But  of  the  three  leading  cases  on  that  side  of  the  question,  Hopkins  v. 
Atlantic  &  St.  Lawrence  Railroad,  36  N.  H.  9,  can  hardly  be  recon- 
ciled with  the  later  decisions  in  Fay  v.  Parker,  53  N.  H.  342,, and 
Bixby  V.  Dunlap,  56  N.  H.  456;  and  in  Goddard  v.  Grand  Trunk  Rail- 
way, 57  Maine,  202,  228,  and  Atlantic  &  Great  Western  Railway  v. 
Dunp,  19  Ohio  St.  162,  590,  there  were  strong  dissenting  opinions.  In 
many,  if  not  most,  of  the  other  cases,  either  corporations  were  put 
upon  different  grounds  in  this  respect  from  other  principals,  or  else 
the  distinction  between  imputing  to  the  corporation  such  wrongful 
act  and  intent  as  would  render  it  liable  to  make  compensation  to  the 
person  injured,  and  imputing  to  the  corporation  the  intent  necessary 


SECT.  VII.]    LAKE  SHORE  &  MICHIGAN  SO.  RY.  CO.  V.  PRENTICE.       883 

to  be  established  in  order  to  subject  it  to  exemplary  damages  by  way 
of  punishment,  was  overlooked  or  disregarded. 

Most  of  the  cases  on  both  sides  of  the  question,  not  specifically  cited 
above,  are  collected  in  1  Sedgwick  on  Damages,  (8th  ed.)  §  380. 

In  the  case  at  bar,  the  plaintiff  does  not  appear  to  have  contended 
at  the  trial,  or  to  have  introduced  any  evidence  tending  to  show,  that 
the  conductor  was  known  to  the  defendant  to  be  an  unsuitable  person 
in  any  respect,  or  that  the  defendant  in  any  way  participated  in,  ap- 
proved or  ratified  his  treatment  of  the  plaintiff;  nor  did  the  instruc- 
tions given  to  the  jury  require  them  to  be  satisfied  of  any  such  fact 
before  awarding  punitive  damages.  But  the  only  fact  which  they 
were  required  to  find,  in  order  to  support  a  claim  for  punitive  damages 
against  the  corporation,  was  that  the  conductor's  illegal  conduct  was 
wanton  and  oppressive.  For  this  error,  as  we  cannot  know  how  much 
of  the  verdict  was  intended  by  the  jury  as  a  compensation  for  the  plain- 
tiff's injury,  and  how  much  by  way  of  punishing  the  corporation  for 
an  intent  in  which  it  had  no  part,  the 

Judgment  must  he  reversed,  and  the  case  remanded  to  the  Circuit  Court, 
with  directions  to  set  aside  the  verdict,  and  to  order  a  neiv  trial. 

Mr.  Justice  Field,  Mr.  Justice  Harlan  and  Mr.  Justice  Lamar 
took  no  part  in  this  decision. 


STATE  V  BVAHS  Mo. 
Pine  the  deoaaseSfrented  farm  from  def  and  wife.  7/as 
told  he  must  give  possession  at  end  of  lease.  This 
displeased  ?ine  and  gave  rise  to  threats  by  Fine. 
Bef,then  armed  himself  and  went  to  oorn  field  where 
homooide  occurred  to  oversee  division  of  crop.  Instr 
to  jury  was  if  he  went  near  deceased  with  deadly 
weapon  even  tho  expecting  an  assault,  he  is  not  jus- 
tified in  self-defense.  EXCEPTIONS, HELD: If  this  were 
the  liw,  it  would  defeat  the  plea  of  self  defense. 
A  man  is  allowed  to  carry  deadly  weapons  if  threat- 
ened and  can  go  any  place  where  it  is  proper. 
CHEIGHTOa  V  QOymBEAXTH  Ky  1886 

Wilson  deceased  attempted  to  arrest  def  unlawfully 
and  def  killed  him.  V/as  convicted  of  manslaughter. 
HELD:  A  man  is  not  justified  in  taking  the  life  of 
another  who  is  trying  to  arrest  him, But  an  attempt 
to  arrest  him  unlawfully  is  conseiderd  a  great  pro- 
vocation, and  will  reduce  a  tilling  in  such  an  arr- 
est from  murder  to  manslau;:hter . 
STATE  V  SHERT^-lilN  R  I   1889 


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